Neon Liberalism #24: The Border Crisis Is an Everything Crisis
Join Samantha and guest Professor Anna Law as they talk about the exploding constitutional crisis over Donald Trump's deportation program, exemplified by the removal of Kilmar Abrego Garcia. Along the way they address the importance of due process, the Fugitive Slave Crisis and the origins of birthright citizenship, and the meaning of American citizenship in the twenty-first century.
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References:
"The Present Crisis and the End of the Long '90s": https://www.liberalcurrents.com/the-present-crisis-and-the-end-of-the-long-90s/
Professor Law's website: https://www.annaolaw.com/
Corrigendum: Professor Law adds, "I made a factual error. The 100 mile zone is only along the nation’s land borders not the airports. BUT, as this CNN article states, 'Two-thirds of the US lives inside this so-called 100-mile border zone, which includes several entire states, including Florida, Michigan, Maine and Hawaii, according to the American Civil Liberties Union.'" https://www.cnn.com/2018/05/23/us/border-zone-immigration-checks/index.html
Full Transcript
Samantha Hancox-Li [00:10]
Hi and welcome back to Neon Liberalism, a weekly podcast where we talk about current events in our country and try to put them in a larger historical and theoretical context. This week, I'm very excited to welcome Anna Law onto the podcast. Anna is an associate professor at Brooklyn College and the Herbert Kurz Chair in Constitutional Rights, and I thought that she would be probably just about the perfect guest to talk about immigration and the crisis of immigration that's happening in our country. So yeah, Anna, thanks so much for coming on Neon Liberalism.
Anna Law [00:53]
Thank you for having me. I'm thrilled to be on to talk about this topic that I've studied for so long, and unfortunately, it's in the news all the time now.
Samantha Hancox-Li [01:12]
Yeah, unfortunate that it's suddenly become so topical in the worst possible way. So I guess my question is, how would you summarize or explain the kind of crisis that we're seeing in America right now?
Anna Law [01:23]
I see a huge constitutional crisis in the separate branches, the checks and balances that the Constitution set up not holding up at all, and the idea of American exceptionalism, that "oh, you know, US institutions are strong, we have this long history of vibrant democracy and everything will be okay." Anyone who has studied US history is not so sanguine, and neither am I. So there's a constitutional and political crisis. But what troubles me is that there's a lot of lawlessness going on, but a large amount of it is coming through immigration policy.
Samantha Hancox-Li [02:12]
That's right, there's all kinds of stuff going on in the federal government. There's Elon Musk, there's Doge, there's the tariff event that's happening. But some of the most deliberate, kind of scary lawlessness is coming around immigration, right? We've seen masked, unnamed agents of the state, basically just grabbing people off the street. People who didn't think that they'd broken any law at all, that they had all their papers in order, and they thought that they were legal permanent residents of the United States. And then someone shows up and puts them in a van, basically. And one of the cases that's really come to a lot of national prominence is the case of Abrego Garcia. Could you summarize his case a little bit for us?
Anna Law [03:08]
So Kilmar Abrego Garcia, he is an immigrant from El Salvador, and he went through an asylum hearing with the immigration judge, and he was granted a withholding of deportation, which means that a judge found that the United States should not be returning him to his home country, because he would be persecuted there. So he doesn't have a green card and he doesn't have citizenship, but by no means is he undocumented. He is legally authorized to be in the country. He is married to a US citizen. He has kids who are US citizens, and he was taken in by ICE and shipped off to El Salvador. And I believe the Trump administration has admitted that it was an administrative error, and so now his family, his lawyers and supporters are trying to get him back, and Trump has said, "Oh, well, you know, he's off in a foreign country, and we have no jurisdiction" which is insane.
Samantha Hancox-Li [04:27]
It's so, I mean, I think on the one hand, they're not quite as unified in what they're actually saying about him. Certainly there have been spokesmen for the administration who've insisted that he's a dangerous MS-13 gang member. They posted some badly photoshopped image of his hands with like MS-13 just MS painted across his knuckles. He doesn't actually have that tattoo for the record, right? So on the one hand, there are people insisting that he's actually genuinely a dangerous illegal alien. And then you have other people who are insisting, "oh, it was actually just an administrative error," and other people who are insisting, "sorry, we shipped them off to a prison in El Salvador, an enormous prison that it seems like nobody ever leaves from, and they're just holding him now, and they have jurisdiction over him, and there's nothing we can do about it. So sorry."
And to me, this sets an incredibly dangerous precedent, right? The government is essentially saying, "Well, we can just grab you off the street and send you to a foreign country and then it's totally out of our hands, and you have no remedy." There's no law once we ship you out of the country, and you have no recourse, and now you're in a prison in a foreign country, and that seems very dangerous to me.
Anna Law [05:48]
It's a really scary precedent. I don't even want to use the word that he was wrongfully deported, because deportation implies that you went through a legal procedure and that the government then decided to send you away. But when he got grabbed and shipped to El Salvador, there was no procedure. And then, as you said, parts of the Trump government are saying, "oh, but he's a dangerous criminal, and therefore he's not entitled to any procedural protections." But if on the say-so of the government, and without Abrego Garcia's opportunity to contest that characterization in a court of law, if people think, "Well, maybe he is a criminal," I don't care if he's a criminal, I don't believe he is. But even if he's a hardened criminal, he still deserves those due process rights. Otherwise, none of us have it, even US citizens. The whole point of due process is to make sure they got the right person. Here, they didn't get the right person. So for the government to say, "Oh no, well, you know, he's a dangerous criminal," according to who?
Samantha Hancox-Li [07:13]
I think that's great that if the government can just point at anybody and say they're a dangerous criminal and we're shipping you off. And oops, sorry, it was the wrong guy, or you were a US citizen, but like, it's out of our hands now, and you're in a prison in a foreign country and no one has any ability to get you back. That's an assertion of basically unlimited power to just grab people off the streets.
And so I want to talk a little bit about how we got here on immigration and what this means, and what kinds of historical precedents we can look to to try and understand what's happening. And one that I and others have been very struck by is the parallel with the Fugitive Slave crisis. And as it turns out, you are writing a book on immigration and slavery and federalism. So I hope this is like exactly in your wheelhouse. So how would you explain the Fugitive Slave crisis? What was the Fugitive Slave crisis?
Anna Law [08:15]
So the US Constitution, when it was ratified, had a fugitive slave clause that people have - citizens have privileges and immunities to move around the country, except for fugitives from justice, and that was put in there for the slave states. And then the first Fugitive Slave Act of 1793 is to sort of translate that clause in the Constitution into law. The Fugitive Slave Act was basically ignored because it didn't make clear who's enforcing this thing.
So the slave states always felt like, "Okay, this thing is only on the books. It's not enforceable." Because is it the state officials enforcing it? Is it federal officials? Are citizens commandeered into enforcing this thing? So they passed a stronger Fugitive Slave Act in 1850 and that's the one that really kicked off a national crisis. Because in theory, people who were enslavers could themselves, or hire bounty hunters to go into free states and to reclaim their human property.
But in practice, it wasn't so easy, because it's hard to find people who don't want to be found. And there was no clarity about how you enforce this thing and who was going to enforce it. But the Fugitive Slave Act of 1850 said the federal government will enforce it. There will be federal officials where, if a bounty hunter or an enslaver goes into a free state and grabs an African American person alleging they're a runaway, they go through a procedure in front of federal magistrates. But there was this really perverse financial incentive where the federal magistrate, if they found that the person was indeed a person fleeing for freedom, then they got $10 but if they found they had the wrong person and had to let that person go, it was $5 - so this is a financial incentive to be corrupt.
On top of that, Black people, whether free or enslaved, couldn't testify at these hearings. They could not call witnesses. So this law creates a crisis, a constitutional and political crisis, because many of the northern states had passed laws protecting Black people from getting kidnapped. And those laws said, if you're going to grab an African American person and allege they're an enslaved person, they need to have a jury trial. But those Liberty laws come into conflict with the Federal Fugitive Slave Act, and it becomes a mess.
Samantha Hancox-Li [12:18]
So to put some more historical details around here. A few weeks ago, we had Jamal Bowie on the podcast, and he talked about the Fugitive Slave crisis. He says there's a few thousand people fleeing north from the south every year, which maybe doesn't sound like a lot to us today, but if you adjust for population, you know, the United States used to be a much smaller country. This is tens of thousands of people every year fleeing from south to north.
And part of the constitutional settlement of the original Constitution you've talked about a little bit is that we're going to have slave states south of the Mason Dixon Line, and we're going to have free states north of the Mason Dixon Line. So there is this idea that we are going to have two very different social systems, but they're going to be geographically kind of separated from each other. And to me, what the Fugitive Slave crisis does functionally is extend the system of slavery into the free states, right? It's no longer, "oh, that's somewhere else that's far away, that's happening to other people who are south of the border." But now you have slave takers coming into the north, right? And now you have the northern legal system and the federal government kind of recruited into enforcing slavery, right? So that geographic distinction between slave and free state kind of breaks down, and it leaves people in the free states very unhappy about it. The Civil War happens, you've probably heard of it. Don't need to talk so much about that.
Anna Law [13:41]
Let me address one of your points, the constitutional settlement that you talk about. That was the dirty bargain that was struck at the founding that, okay, we're gonna have free states and we're gonna have slave states, and we're gonna mutually respect each other. But the Fugitive Slave Act of 1850 completely puts those two in conflict, as you said, and it not only makes the northern free states very unhappy. The quality of life effect on free Black people in the North - there was an existential crisis in the Black community, because every free Black person suddenly can be kidnapped and they are not free.
And the 1850s is, not surprisingly, the height of the underground railroad system. And so the line that you talked about, the Mason Dixon Line, separating slave and free - it moves because the line for Black people to be safe moves all the way up to Canada. You gotta leave the country to be truly safe. So we think of the United States as a nation of people coming in, a "nation of immigrants" was JFK's phrase. But in parts, when the US became that repressive, it became a nation of ex-migration. And for Black people, that was the turning point, the 1850s and that law.
But I want to also bring up another constitutional settlement that is less discussed. Before the Civil War and Reconstruction, states ran migration policy. States deported people. States like Massachusetts deported people to other states, deported other people to Europe.
Slave states ran both international and interstate migration. They did not want free Black people coming into the state, whether it was from other states or whether it was international Black sailors from French and British ships. So before the Civil War, slavery and voluntary migration are one big ball of wax, completely inseparable. Because can you imagine telling the slave states, "oh no, the federal government has deportation power" - the slave states freaked out at that prospect and said, "No, you can't have the president. What if he deports all the slaves?"
So federal immigration power is not happening until after the Civil War. There's a long unbroken line from the colonial period all the way to the Civil War, where states and localities almost exclusively ran domestic and international migration policy. And that was part - part of it was slavery, and part of it was the northeastern states. They don't want poor, sick, disabled people, because they're going to be a burden when there's no welfare system. So both those things - the slate states that don't want free Black people and the northeastern states that don't want immigrants that might become a public charge - under constitutional law that falls under police powers, where states can decide health, safety and morals. So for over 100 years, it's the localities and the states that control migration policy.
Samantha Hancox-Li [17:40]
No, I think that's really interesting and kind of illuminating. From our perspective, there's a particular kind of constitutional settlement we grew up in, and it's easy to think, "well, it always must have been this way, and it's the only way it could possibly be." But you start to look into history, and it's like, we've run things in very different ways in this country in the past. These are not the only possible ways to structure the powers of government.
And I do want to come back to something that you just talked about, which is the way that the Fugitive Slave crisis wasn't just a crisis for fugitive slaves. It was a crisis for free Black men and women, people who were born free or made free, who had lived their whole lives free, whatever, who were, in fact, free, right? And if somebody could come into your community and grab you off the street and take you before their favorite corrupt judge and say, "This guy's a slave" and you weren't, by dint of your race, allowed to speak in your own defense or to call witnesses on your behalf who could testify that you were free, and then you got shipped south, and you were a slave, right? And now you were outside of the judicial system. As a slave in the south, you were not going to be filing a petition with your local court to say that actually you were a free person. They weren't going to hear that.
So suddenly, this boundary, the supposed boundary between slave and free, just kind of collapses because of the lack of due process. I mean, slavery is bad enough on its own, but because of the collapse of due process, it suddenly starts infecting everything else in society. There's no safety from it. There's no running from it. It's everywhere now. And I think that is instructive for the kind of case we're thinking about today, and the way that the logic of deportation or expulsion or whatever you want to call it, is starting to spread itself across society.
But before that, I do want to talk a little bit about something that comes up a lot in discussions of immigration, which is the 14th Amendment. Because the 14th Amendment today is such a central piece of immigration law today, but is born in the context of slavery. So do you want to talk about that history, a little bit about what the 14th Amendment was drafted to do?
Anna Law [20:39]
So there were, before the Civil War, not every Black person was enslaved, and so there was a huge community of free Black people everywhere, but what's their legal citizenship? Because some states like Massachusetts and Connecticut absolutely claimed African Americans as state citizens. If they were men and property owners, they could vote, they could serve on juries, they could sue and be sued. So great, they have state citizenship. But other states, it runs the gamut from the state treats them as a state citizen to slave states, where even if you're a free Black person, you have zero rights and you're not a citizen.
So there's that question of, okay, so what is the legal citizenship of free Black people? Are they US citizens? Because there are African Americans applying for passports to the State Department, and the State Department said, "No, you don't get a passport because you're not a federal citizen."
So the lack of legal citizenship of free Black people allowed them to be discriminated by states setting up laws saying they can't go to certain states or settle in certain states. The 14th amendment is to address that murky legal citizenship of free Black people and all Black people after slavery is abolished. And so they debate in Congress, they go back and forth, and they say, "You know what? The best way we can do this is simply to say, if you are born in the United States, on US soil, with a narrow range of exceptions, you are, in fact, a US citizen, and furthermore, that US citizenship trumps state citizenship. If the two are in conflict, the federal citizenship takes precedent and the federal government is going to be in charge of enforcing the rights that come with US citizenship." That is the driving reason for the birthright citizenship amendment. It is to clarify and make black letter law: anyone born on US soil, you're a citizen.
Samantha Hancox-Li [23:18]
Yes, I think that's very important. Like, you say there's two very narrow exemptions, right? If, basically, if you're the child of a foreign diplomat, or if you're the child of an invading army, if I recall correctly - haven't had one of those in a very long time, right? But it's important that there's no quibbling about it. There's no "Oh yeah, you have to go through this process or that process." But it is just very simple: if you're born in America, you are a citizen of America.
And I think you're right to emphasize how this kind of clarifies the chaos of pre-Civil War citizenship law. I think it's also important to emphasize that it's not just to clarify existing law, but it's to say that there can never be a permanent underclass in America, right? That there's never going to be a permanent class of non-citizens in America again, the way that slaves were a permanent class of non-citizens in America. That if you're here, you might have come here by various ways, but your kids are going to be citizens without any qualification, right? There's no hierarchy of citizenship that you could aspire to.
And so it's supposed to - theoretically in practice. We still do have a long story to tell about Jim Crow, about the long endurance of segregation in America. The Reconstruction amendments don't quite achieve as much as their framers might have hoped for them to achieve, but they do settle certain basic questions.
Sorry, I don't know if you can hear that, but yes, the cat wants attention. I'll ask her what she thinks about slavery, but I'm not really expecting a very coherent answer. I think she mostly just wants me to go over there and stroke her tummy.
Anyways, where was I? Slavery, citizenship, the 14th Amendment today, right? Is this hot button question about immigration, but the fundamental purpose of it is to guarantee equality of people in America. To me, anyways, that's what it is - and it's not as if the framers of it - that the immigration impacts were unknown to them. My understanding is that the question of immigration is in the Congressional Record, and people said, "Well, look, if we have birthright citizenship, then even the children of China men who have come here are going to be citizens." And the framers said, "yes, yes, that is exactly the intention." And this is the way that it's been understood by the Supreme Court ever since, what is it? Wong Kim Ark, is this Supreme Court case that kind of settles that question.
Anna Law [26:12]
So you're right, there's the children born to diplomats are not covered under birthright citizenship. Children from invading armies not covered under birthright citizenship. A third group is Native Americans, and the reason is - in the language of the 14th Amendment, Lyman Trumbull said "the wild Indians" - but actually to bracket out Native Americans is not being exclusionary. It's because it's out of recognition of native sovereignty, and that people who have not left their tribal affiliations have tribal citizenship. So even the Native American exception is not meant to create caste. It is meant to acknowledge there's another sovereign in the United States, and those are the people in Native nations.
But you're right that even in the debate of the 14th birthright citizenship, of course, they had their idea of who was undocumented at that time. It's not Mexican and Central Americans as in the contemporary period here, but they had in mind - okay, so after 1808 when Congress passes law closing down the international slave trade, there are still ships smuggling in enslaved people. Those are undocumented people. Technically the 14th Amendment birthright citizenship covers their children.
So of course, there were undocumented people at that point, and the framers of the 14th Amendment went out of their way to say, "yes, the Chinese, yes, we hate them, yes, the Chinese still count. If they have kids here, they will be birthright citizens" and some senators said, "Oh my God, we can't - I mean, it has to be birthright citizenship. Because what are we going to do if we don't with the children born to undocumented European immigrants, Italians and Irish? Oh my God, we can't have those children with no legal citizenship status." So they absolutely were addressing what they understood as unauthorized immigration at that time.
Samantha Hancox-Li [28:55]
Yeah, I want to highlight this because there's been some kind of disingenuous arguments from the Trump administration, from their courtier lawyers, that actually the framers had no idea about illegal immigration, and clearly they couldn't possibly have meant that. You know, birthright citizenship has kind of been a bugbear on the right for a long time. But again, if you look at the actual congressional record, they were well aware of these questions, and they intended to resolve them in this way, in favor of birthright citizenship.
Okay, so I think this is probably a good time to start turning a little bit away from history and more towards the present crisis that we're kind of embroiled in. And to me, the immigration crisis - I mean, I don't know what else to call it. At this point, there is a crisis happening, and it concerns immigration - is something that's been brewing for a long time, that many presidents in my lifetime have promised to try and do something about the immigration question, and have largely failed to do so. And so I was wondering if you could talk us a little bit through that history about how we got here today with the immigration question.
Anna Law [30:17]
So the immigration framework for US immigration law and policy hasn't been substantially changed since 1965. I mean, we've passed laws tweaking this and tweaking that, but the framework is from 1965 and of course, there have been efforts to change and do comprehensive immigration reform, and they have all failed, because immigration is like a Rubik's Cube. You satisfy one constituency, and then another constituency gets upset. You turn it one way, and then another constituency gets upset.
But there's actually broad agreement on immigration. No one out there, even before Trump has said, "Oh no, the system is totally working. It's totally fine." Everyone agrees it's a mess, but we can't seem to fix it because there has been no comprehensive fix. It has left a power vacuum, and so for political entrepreneurs like Trump, who seized on immigration as a wedge issue, there was no legislation going on. So he jumped in and said, "I will fix it." And he was able to turn immigration, which is a very complex topic, into a way to channel white grievance and resentment.
Samantha Hancox-Li [32:06]
Yeah, I think that's right, that there's no one who seems to be satisfied with the status quo on immigration. There's long been a recognition that something should be done. But the what and the how is what people fight over.
I had Devereaux on the podcast a few weeks ago, he talked about functionally similar questions in the Roman Republic, and the question of how they were going to admit the various socii into the tribes of Rome. And everybody recognized, "we have to do it," but no one either wanted to let the other side do it and get credit for doing it. And then there was all this questions about how do you admit them, and which tribes of Rome are you going to admit them to, and that's going to unbalance our political system. And so there's all this infighting about how that was going to get done.
And I think in America, it goes a little bit deeper than that. So I have an essay up at Liberal Currents just yesterday, I believe, called "The Present Crisis and the End of the Long 90s." And one of the things that I argue is that the constitutional settlement that kind of governed America for the last 40 years or so has broken down, and part of that settlement was a kind of hypocrisy about racism and sexism. And the hypocrisy is, on the one hand, we're going to admit that America is for everybody. We are going to have facially universal, facially neutral celebrations of equal citizenship for everybody, and we're going to reject explicit, vulgar racism and sexism. But in practice, America is going to remain a white man's Republic.
And this kind of looks like a reasonable compromise in 1980 where, on the one hand, you have insurgents, the civil rights movement, feminists, various other kinds of people demanding greater equality, who look at this and say, "you know, we'll take it," because we're going to get the abandonment of really explicit, grotesque racism and sexism. And on the other hand, you have the old guard who say, "Well, we're gonna keep all of our privileges in practice."
And I think that's really broken down today from both sides, right? That there are people who are demanding, "actually, we don't just want superficial words about equality, but we actually want the real thing." And people who are like, "oh my god, actually, we might have to have a real plural Republic," and that seems intolerable to them. And I think immigration really emblematizes this struggle over citizenship, because we haven't changed immigration law for a long time, and it's not satisfying to anybody, because it reflects this hypocrisy.
Because on the one hand, we are admitting millions and millions of people into America, and many of them are not white, and that feels very threatening to the old guard. On the other hand, we're not really making it easy, right? It's still a kind of an arduous process. There's a lot of hoops to jump through. There's, I mean, speaking as somebody who's kind of experienced this from the inside, there's a lot of red tape, even in the best cases, and we still make it quite difficult to come to America. We don't actually say, "hey, any race, any class, any creed, if you want to become American, here's how you do it." And so there's always, for decades, been that tension in our immigration system, and now I think it's come to a head, has come to a crisis. Does that seem like an accurate read on where we are to you?
Anna Law [36:28]
It does. I mean especially the part about the 1965 act. It's not clear that when Lyndon Johnson signed that into law, that he knew that it would demographically change the color and national origins of the people coming to the United States as immigrants. And since 1965 the flow of immigrants has been non-white. And so you're right that that has triggered a cultural backlash among some sectors of the United States.
And so I think the crackdown on immigration that Trump has declared - war on immigration - is he's using immigration as a symbol of all those demographic changes and cultural changes that people don't like. It's all immigrants' fault. You know, people who call up their cell phone carrier, and the message says, "press one for Spanish" - they get really upset. And so Trump has used immigration to tap into that resentment, but his framing of immigration as a crisis is also a political act.
There is unquestionably a humanitarian crisis at the southwestern border, but the humanitarian crisis of why people are forced to leave their home countries, a very desperate act if you think about it, is not the same as what Trump is doing. He's turned immigration into a crisis by saying "all criminals, if there was a criminal act, it was probably an immigrant." I mean, that's a different framing of crisis. There is definitely a humanitarian crisis, but that is not the way Trump is defining the crisis of immigration.
Samantha Hancox-Li [38:15]
No, I think that's right, that the way the right frames this - I mean, Trump is, in some ways, kind of the gentler face on the right. Which sounds weird, but I think when he talks about illegal aliens and they're criminals and blah, blah, blah, that's one kind of panic about immigration that isn't really based in fact. But then you have people who are afraid of what they call the great replacement, right? Who will just explicitly say, "We don't care if they're criminals, right? That's not the question. What we need to do is preserve white America, and even if these people were the hardest working and the most law abiding and came here peacefully, we don't want them," because we want it to be a white man's Republic, and any changes in people's skin color is a threat to their conception of themselves, or something like that.
So I think you're right that these two things kind of blend together, right? But they're based on fear - fear of the other, fear of strangers. There's some studies that I think are really interesting that seem to show that fear of immigrants is greatest in the places with the fewest immigrants, right? That actually living around other immigrants, people seem to be okay with them. There's some interesting data out of Germany, where they had a big Syrian refugee resettlement program, and it was relatively random, like where people got sorted to in the country. So it makes a nice natural experiment. And basically they show the places that actually received Syrian refugees had higher acceptance of immigrants than similar places that had fewer refugees.
And I think you see the same kind of thing in America, that it is precisely the areas of this country that are lily white and deeply Republican that have the greatest fear of immigrants.
Anna Law [40:24]
It's also that message is being amplified by a conservative media ecosystem. So even if you don't live in New York City like me, where there's humans from everywhere, everywhere, but if you only get your news from that ecosystem, you really believe that we're being replaced, invaded, whatever derogatory adjective is being used about immigrants.
Samantha Hancox-Li [40:55]
Yeah, Fox News always has scary pictures of men with tattoos and the migrant caravan that reappears and disappears every few months. They're always panicking about some migrant caravan when they need to whip up sentiment about that.
I do also want to go back to highlight how some of this parallels the Fugitive Slave crisis that we've been talking about. You talk about a humanitarian crisis at the border. It's often framed this as a border crisis. Republicans like to talk about the border crisis. And again, that suggests a kind of geographic separation, right? That there's a crisis happening in a geographically defined area, the vast deserts of the Southwest, or a wall that we're going to build out there.
And I think what we're seeing today is that that's not actually tenable, that's not a sustainable solution, because border enforcement, the question of border enforcement, starts to spread itself across the entire country.
And so there's an argument from Chandran Kukathas that I kind of like, where he argues, I believe it's in his book "The Liberal Archipelago," that you can't have restrictions on immigrants without also having restrictions on citizens. And he says, many, many illegal immigrants - I believe most illegal immigrants in America - they don't sneak across the border. They come here on a visa, and then they overstay the visa. And so it's not like there's some geographic place where you can catch them, but it's a matter of, you'd have to be surveilling society. You'd have to be tracking people all the time, and you'd also have to be tracking citizens, right?
Because you want to say, "illegal immigrants can't work in America." Well, how do you do that? You have to be paying attention to citizens and who they hire. You want to say, "illegal immigrants can't legally rent a room in America." Well, you have to be tracking landlords or people with rooms, or various other kinds of commercial companies like hotel providers, and making sure every single person - are they a citizen? And I think this gets back to these points about due process that we've been talking about.
And I know you've written about this as some of your area of expertise. But can you talk a little bit about the legal regime at the border, what I've sometimes heard referred to as the Constitution-free zone of the border?
Anna Law [43:54]
So it's supposed to be that the border is a 100-mile zone from an international port of entry, and that's where the Constitution gets very weak or goes completely missing. So if you're trying to come into the United States, you pass a land border, or a land border with Mexico, that's pretty clear that it's a geographical zone. You can look at it on a map.
But international airports, right? So JFK Airport is in the middle of Queens. So draw a 100-mile radius around that airport and every international airport, and how many - those zones are really big. The problem is with the Trump administration - right before we got on the air, I read that he has been using the Alien Enemies Act from the 18th century to authorize ICE to go into people's homes without a judicial warrant who are suspected of being enemy aliens. Never mind we're not at war with anybody.
But I don't think the geographical zone is even applicable anymore. The other border 100-mile zone - where's the border if the DOJ is asserting that the Alien Enemies Act authorizes ICE to go into anyone's home on suspicion without a judicial warrant? I mean, so basically, you've suspended the Constitution anytime ICE thinks that you're an enemy alien. I can't even draw a map. I mean, I guess I would just have to cover the whole United States.
Samantha Hancox-Li [46:03]
No, I think that's exactly right. And you know, we've seen the courts, like you said, kind of back away from enforcing all the privileges and immunities of the Constitution at the border, or saying, "Well, if you're not a citizen, you don't quite have as many constitutional rights, the constitutional protections don't apply to you." There's this kind of deference to the logic of the executive branch saying, "Oh no, immigration enforcement supersedes the constitutional guarantees, but it's fine. We could just keep it contained in this little geographic area."
And I think what we're seeing is that you can never keep this kind of stuff contained, right? The Constitution applies or it doesn't. And if you say it doesn't apply, it starts to spread, right? And it starts to spread geographically. And now we're starting to see it spread across all citizens, right? If ICE can come to your house and just say, "we suspect you," and that's enough for them to come in your front door without a judicial warrant, without going through an independent, third adjudicator.
Anna Law [47:20]
That's why I think that's the attraction of the El Salvador prisons. The Constitution doesn't apply there, according to Trump and the DOJ. Never mind that Trump is paying money to El Salvador to accept these people that we send them. So I mean, is it - once you leave the geographical borders of the United States, you're in a constitutional Bermuda Triangle? I mean, that's what he's trying to do, I think.
Samantha Hancox-Li [47:59]
No, I think they've, in some cases explicitly made that argument that, "well, once we got outside the borders of the United States, we can do whatever we want - oh well, it's a sovereign country." Never mind that we have a deal with them.
I mean, it's just trivially obvious that if we wanted these people back, and he told Bukele, "I want these people back," that they would be back tomorrow. They just don't want to do that. They don't want to obey the courts.
Okay, so I guess we're getting a little closer to the end of our conversation here, and I want to ask you, what should we do, right? What should we do about this crisis? What kind of better future should we be working towards?
Anna Law [48:43]
I think that we at the present moment, we have to keep - for those of us who are US citizens and who have expertise in this area, it is a scary time. But I also have read the political science literature that keeping quiet in a time like this is not really going to help us. So as academics, I think academics should, to the extent that they feel safe, use their expertise. I think citizens should continue holding their elected officials accountable.
I call Chuck Schumer and Kirsten Gillibrand's office on a weekly basis, even though they don't pick up. And just to - even though they're not moving in the direction I would like, but they need to know that their constituents are angry, and that I expect them to use every democratic means available to bring this Abrego Garcia guy back and to shut down the system of shipping people out overseas, where they're out of reach without any sort of trial.
But it is - there's so much bad news coming at us from all sectors that my students get overwhelmed, too. When I talk to them about this stuff, a lot of them are people of different immigration statuses, and I tell them, "Well, you focus on one issue that you really care about, you learn everything you can about it, and you drill down because there's no other way." We have to keep ourselves informed. We have to keep trying to hold our elected officials accountable, and we should act locally. I can't do anything about moving the needle on national immigration policy, but I can teach my students what's going on. I can help answer basic questions my neighbors might have, or something like that to be influential in my own very small sphere.
Samantha Hancox-Li [50:41]
I think that's valuable advice to keep in mind. And I think, you know, we see sometimes these excuses from politicians or from pundits that say, "well, Democrats are out of power right now, and so they can't change National Immigration Policy." And on a formal level, that's true, right? Democrats are out of power right now, but that doesn't mean that we are powerless, right?
So we recently saw a Democratic senator, Senator Van Hollen, I believe, who, just went to El Salvador, and he said, "Abrego Garcia is from Maryland. This guy is my constituent. I am going to go to El Salvador. I'm going to see my constituent. I'm going to do everything I can to make sure that he's okay, that we get him back." And even though this doesn't have the force of law or policy behind it, it creates a confrontation with Trump's lawlessness. It creates a confrontation between decency and empathy and the kind of lawless cruelty that Trump is trading in.
And this is something that many of our elected politicians could be doing. They have a level of platform, that many of us don't. And by creating these confrontations, they can change the direction of national opinion, as we've seen has happened, right? That Trump is becoming unpopular quite quickly, including on immigration.
Anna Law [52:03]
Ten point drop since February on immigration.
Samantha Hancox-Li [52:10]
Yeah, and I think that's very striking, right? When at first, people were saying, "Oh, look, Trump is doing all these terrible things, but immigration is something where he still polls really well, so obviously Americans must support everything that he's doing." And I don't think that's true. I think the average American, as we have discovered, is relatively tapped out from political news, and also that the preferences aren't immutable, right? That people's opinions can be moved by leadership, by taking a moral stand. And I think that's been happening on immigration, among other things.
Anna Law [52:54]
I've had a lot of friends who are not academics or who are not immigration experts, but they know that I study immigration, and that is the one thing they're the most appalled by. They said, "Wait, this can't be legal. This can't be constitutional. That the government can take you, make a mistake, ship you overseas to some gulag, and nothing can be done. This is a violation of fundamental fairness - what is happening?"
And so Van Hollen going there - he drew the spotlight. He spotlighted this issue. He even broke through on Fox News. I mean, he was on Fox News. And what he did was really good, and I hope that the Democrats now see - those chicken shits - instead of saying, "Oh, we shouldn't attack Trump on immigration because he's polling well." Yeah, no, he's not - not when you draw attention to all these kind of abuses. And now public opinion is headed in the opposite way.
Samantha Hancox-Li [53:42]
No, this is something that we've been very emphatic about at Liberal Currents - is the possibility of leadership, the possibility of changing the conversation. And I think that's what Democratic voters want. They want leadership. They want somebody who will fight, not somebody who's going to roll over and play dead for these people, or to be like Gavin Newsom and stick his finger in the air and see which way the wind is blowing.
Anna Law [54:14]
That's right. No, I think Newsom kind of displayed a fundamental moral cowardice, right? That he showed he didn't really have principles. And people want principles. People want people with the courage of their convictions to stand up at these times and say what's right and what's wrong.
Samantha Hancox-Li [55:17]
And so, yeah, I guess my last question for you is, like I said, Democrats are out of power right now. Doing anything on policy terms seems like it's going to be difficult, but we're not going to be out of power forever, right? There will come a day when Democrats will retake power in this country, when progressive forces will retake power in this country. What should we do about immigration on that day?
Anna Law [55:56]
We need to have a national conversation of, like you said, about citizenship specifically - what is in the package of rights for citizens? And because we've seen so many abuses in the current moment and in the historical past about discriminating against people and putting legal disabilities on people because of their citizenship, maybe we should rethink doling out rights based on this status. And how do we make sure people are treated fairly and protected? Do we stick with citizenship as the way we delineate, or do we move to some other way of doing it?
And I'm trained as a legal scholar, so my field of vision is actually quite narrow. And I think a political theorist might be a good person to ask, like, how do you define how you protect people - broad, humanistic protections. How do you make that happen? And I'm not convinced that legal citizenship is the way to go, because it has been abused so many times that we need to have a national conversation, not just of citizenship, but what kind of country do we want to be? What kind of country are we? Do we let the government discriminate against whoever they want based on citizenship? What kind of country are we?
Samantha Hancox-Li [57:22]
No, I think that's right, that it's possible to see these things from a very narrow aperture about, well, the legal question of this, or the constitutional interpretation of that. But for me, these are fundamental questions of values, right, fundamental questions of - I mean, maybe you won't like this framing, but - who is an American and who gets to be an American, right? What rights does that entail?
For me, personally, I think there are a lot of people around the world who would like to be Americans, right? They would like to come here and do the same things that all the rest of us do. Work hard and earn a living and support their families and live a free life. And I don't see how that hurts me. I think that's good for me, actually, to share a country with other people who want to be free.
So for me, I think we really need to emphasize - to have this national reckoning and say, "Yeah, America is for everybody, right?" Not just for white, Christian, patriarchal, however you want to frame it - for that narrow slice that always seems to think it's their country and no one else's. No, I think America is for everybody.
Anna Law [58:52]
No, I think that because my book that I'm finishing up is so historical, I see a lot of political scientists and law professors rolling their eyeballs at me, like, "Oh my God. Who cares about that ancient history?" But you really do have to see how we've defined who is an American before, and how did that work out, and who did that hurt, and who did that benefit?
And I tell people who look at my historical research skeptically, I say, whether you like it or not, "make America great again" is a historical argument. It's a very distorted argument about a vision of who they think an American is. I disagree with it. And a lot of people across US history, including African Americans who were enslaved and other people who didn't have full citizenship, also disagree with that vision.
Samantha Hancox-Li [59:43]
No, I think that's - I mean, here on Neon Liberalism, I think history isn't dry and dead. I think history is all around us. And I think it is, like I said, there's a kind of myopia that you see from people who can't think past six months ago. They have the memory span of a goldfish, and this makes them really struggle to understand the world, because their frame of reference is so small. And I think if we want to understand the society we're living in, if we want to understand how we got here and how we might get somewhere else, I think we need to understand history.
So this has been an absolutely lovely conversation. Thank you so much.
Anna Law [1:00:43]
Thank you so much for having me.
Samantha Hancox-Li [1:00:54]
So once again, I do have to remind our listeners that Liberal Currents is a subscriber-supported publication. If you like the work we do here, head on over to liberalcurrents.com and subscribe to our newsletter. Stay in touch with all of the other content that we produce, and consider pitching in a few bucks and supporting us. So thank you again for coming on the podcast. Thank you all for listening to the podcast, and I will see you again next week.
