Title: SCOTUS Sides With ICE

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Brian: It's The Brian Lehrer Show on WNYC. Good morning, everyone. On yesterday's show, as some of you heard, we did a segment describing a series of losses that President Trump had in lower courts recently, slowing his push to concentrate power in ways that many see as authoritarian. To remind you of some of the recent losses on imposing and removing tariffs based on the president's whims. On funding cuts to Harvard, the court in that case said it was a First Amendment free speech violation.

Several were related to issues of immigration and deportation. They tried to deport hundreds of unaccompanied minors back to Guatemala. A plane was on the tarmac late at night a couple of weeks ago, and the judge ordered that it not take off and the children be removed from the plane. Trump lost unending temporary protected status the way he did for people who've been here legally from Venezuela and Haiti. On using the Alien Enemies Act, which allows deportations without due process during times of war, the court noted, the US is not at war.

On deploying the US military to Los Angeles from what is now called the Department of War, the court said, this is a quote, "There was no rebellion, nor was civilian law enforcement unable to respond to the protests and enforce the law." Remember, those protests in LA were partly in response to a sweep by immigration enforcement, ICE, to pick up lots of workers at a Home Depot in LA County. Hold that thought. We noted on yesterday's show that all of those losses for Trump were in lower courts, and many or all would eventually wind up at the Supreme Court, where we know Trump tends to win.

Sure enough, almost right after we aired that segment came a bombshell ruling from the Supreme Court that would allow racial profiling as a factor in deciding who to stop to check their immigration status. Just looking Latino to an ICE agent could now be grounds for detaining someone for questioning if they're at a place where undocumented immigrants are known to congregate, like a day labor or pickup spot, or what kind of work they do, certain kind of workplace, or if they speak little English or English with an accent. Another criteria the court found was okay as a partial reason to stop someone.

ICE is detaining people on those broad profiling criteria, and not just Latinos. Did you hear there was that mass detention of nearly 500 people, overwhelmingly from Korea, at a Hyundai plant in Georgia last week, at the Home Depot in LA, where the earlier arrest took place? Reaction came yesterday from LA Mayor Karen Bass.

Mayor Karen Bass: I dissent. We all dissent because, from the beginning, we have known that Los Angeles has been used as a test case for total dominance and unchecked power by the federal government. We have been used as a test case to begin to normalize military intervention and takeover of our cities.

Brian: LA Mayor Karen Bass. We'll hear more from that news conference and also from Border Czar Tom Homan with his side as we go. Our guest to discuss this ruling and also the Guatemalan unaccompanied minors case is Lindsay Nash, associate and clinical professor of law at the Cardozo School of Law at Yeshiva University in New York and co-director of their Kathryn O. Greenberg Immigration Justice Clinic. Professor Nash, thanks for coming on for this. Welcome back to WNYC.

Professor Nash: Thank you for having me.

Brian: This order is temporary for now, we should say. It goes back to a lower court. Basically, what is this case, Noem v. Vasquez-Perdomo?

Professor Nash: This case arose from a mass raid operation called Operation At Large that ICE and other DHS subcomponents conducted in the Los Angeles area starting in early June of this year. It came just after the administration had called for the agency to make greater number of arrests each day. At the time, the president called it the largest mass operation like this in history. The way it worked was that federal immigration officers would conduct roving patrols in the Los Angeles area and specifically target certain locations like bus stops, car washes, tow yards, et cetera, and workers in certain positions and people who appeared to be of Hispanic or Latino ethnicity and people who spoke Spanish or accented English.

These characteristics cover a very large proportion of the population that lives in that area. Unsurprisingly, these roving patrols resulted in many really rough and terrifying stops of holding people, demanding their documents, sometimes by armed or masked agents. In some cases, even where people produce documents, they were held and questioned. At least one person was taken into a car and then taken to a warehouse. These are just of the people who shared their experiences in this litigation.

This happened to not just people who didn't have status, but also people who did, people who are US citizens. These raids resulted in arrests based on these characteristics that I think have long seemed to be unlawful and inconsistent with the way we think about what is a permissible basis for an arrest. The district court found that, as a matter of practice, ICE was relying on four characteristics: apparent race or ethnicity, the fact that someone spoke Spanish or spoke English with an accent, their presence at a particular location, and the type of work that they do.

What it found was that ICE's sole reliance on these four factors doesn't constitute reasonable suspicion that would justify these sort of brief detentive stops, it called these stops. It issued a temporary restraining order, temporarily preventing ICE from making stops based on these four factors alone or some combination of these four factors. It didn't prevent ICE from doing immigration enforcement in that area or from relying on one or more of these factors in combination with other factors. It just enjoined these stops based on these specific four factors, one or more of these four factors, without other factors that might, in fact, constitute reasonable suspicion to detain someone.

Brian: This is not an official decision like those we get in June, and you have to interpret that it was the usual six-to-three conservative to liberal margin. Justice Sotomayor did write for the dissenters. I'm going to quote from each of those a little bit, addressing what you were just laying out and why Mayor Bass, why Justice Sotomayor would object. Justice Kavanaugh wrote on these four criteria, using them as sufficient to stop and question people. Again, I'll go over them because four is a lot for the radio audience, as this goes by quickly.

I'll just reinforce apparent race or ethnicity, combined with being in places where immigrants without legal status are known to gather, plus limited English or speaking English with an accent, and being at a place where immigrants without legal status are known to work. Kavanaugh wrote that under this court's precedence, not to mention "common sense," those circumstances taken together can constitute at least reasonable suspicion of illegal presence in the United States. Those circumstances taken together can constitute at least reasonable suspicion of illegal presence in the United States. Professor Nash, how new is that? How different from the practice of law enforcement, including immigration enforcement, as we usually know it?

Professor Nash: As you noted, it wasn't a decision on the merits, essentially. What he's saying is that he's relying on a case from 1975 called Brignoni-Ponce and using it in a way that I think, as the dissent points out, is really contrary to the reasoning of that decision. He's suggesting that the fact that the government has provided some numbers which are not in the record, and so haven't really been tested. He's relying on the government's numbers that they've asserted about the number of people in the area who are undocumented.

He ignores the more relevant numbers here, which is that the factors that they're relying on characterize a large, large proportion of people in that area. The estimates, I believe, are that roughly half of the people in that area are of Hispanic or Latino ethnicity and that nearly 40% speak Spanish at home. He's ignoring a key part of the case that he was relying on.

The Brignoni-Ponce case made this very important point that the government couldn't just stop people of, in that case, apparent Mexican ancestry and border areas, because that would subject a large volume of people to those stops because they have that characteristic of apparent Mexican ancestry. It needed something more particularized, and that's the same here.

The government is relying on numbers that characterize a large proportion of people in that area. What Kavanaugh is doing, if that were to be the rationale adopted by the court at a later point in litigation, would really change what the point that this earlier case made about how numbers should matter here and and how we should think about the characteristics that could be understood to be the basis for these stops when they characterize such a large number of people in a particular area.

Brian: Justice Sotomayor cited that 1975 case that banned traffic stops on the grounds, as you say, of the people in the car looking Mexican to a border patrol agent. I guess when Kavanaugh cites that precedent on his side, he's saying, "Yes, but in this case, it's not just that. It's also if they're congregating at a place where day laborers are picked up."

We know a lot of day laborers are undocumented because that's how they can get work without showing proof or at a place where a lot of people not here legally are known to work, like the Home Depot, in that case, or the Hyundai plant, and the way they speak or don't speak English. He's saying he's not violating the 1975 case because it's not just based on looking Hispanic. It's that in combination with these other three factors. Am I understanding it correctly?

Professor Nash: I think he's saying that there's something more than just their apparent ethnicity here, but it seems to leave open the fact that their ethnicity, combined with any one of the other factors, including one of which is language or speaking accented English, could add up to reasonable suspicion. I think if that were to allow ICE to make arrests based solely on ethnicity and their language or ethnicity and their accent, I think that is not a meaningful distinction from Brignoni-Ponce. I think that, as Justice Sotomayor makes the point very well, those are so intertwined that they're not meaningfully different in some cases.

Brian: Sotomayor wrote, "After today, that," meaning protection against racial profiling, "may no longer be true for those who happen to look a certain way, speak a certain way," to the point you were just making, "and appear to work a certain type of legitimate job that pays very little because this is unconscionably irreconcilable with our nation's constitutional guarantees. I dissent," wrote Justice Sotomayor. Further to that point, here's Armando Gudino from the Los Angeles Workers Center Network, which the AP describes as a plaintiff in the case.

Armando Gudino: Today, Supreme Court conservative majority handed down a ruling many of us feared but expected. By siding with the Trump administration, this court majority has revealed itself as highly prejudicial and has further empowered authoritarianism in this country. Immigration agents are now being given the power to profile, stop, detain, and arrest people because of the color of their skin, the language they speak, or the work that they do. In doing so, they have effectively legalized racial profiling and, by extension, racial discrimination.

Brian: Armando Gudino from the Los Angeles Workers Center Network. Here, from that same news conference after the ruling at the Home Depot where the original raid took place, is Eunisses Hernandez, an LA City Council member.

Eunisses Hernandez: It's been about who they don't want to see in this country anymore. They're starting with Latinos, and they will be coming for others. Recognize that. They're already taking citizens. It doesn't matter. Wake up.

Brian: Professor Nash, what do you see as the slippery slope implications that all three of the speakers we played clips from, Councilmember Hernandez there, Mr. Gudino from the LA Workers Center Network, and Mayor Bass earlier? The slippery slope implications they talk about in these clips. If people accept Justice Kavanaugh's reasoning, this would only apply to people suspected of being not in the US legally, not to other categories of people in this country.

Professor Nash: I think this really opens the door. I'm concerned that it opens the door to racial profiling. That's true for the immigration enforcement system, certainly. It's long operated without the kinds of checks that we see in other contexts. When we have a clear practice like this, and the people impacted by it are able to bring suit and make the kind of clear record we have in this case, and the court still allows it, the court still stays an injunction trying to stop that, I think that's really giving ICE the sign that this is not going to be stopped by the courts.

The only real potential check they could potentially face in this system is not going to act that way. It's not going to serve as a check. I think that it certainly opens the door to ICE being able to do this and being able to do this in a more aggressive way. ICE officers don't just conduct civil immigration enforcement. They also conduct enforcement related to violations of immigration laws that are considered criminal, and so this could certainly bleed into those kinds of actions as well.

I think it's hard to know quite how far it would go beyond that, but the fact is that ICE and CBP and DHS, in general, operates an enormous police force in our country, an enormous law enforcement force. Giving them this kind of green light to what they had been doing in Los Angeles, I think, should be really concerning.

Brian: Some people are starting to call in and text on this. Listeners, anybody can with a question for our guest, Lindsay Nash from the Cardozo School of Law, or with a comment, 212-433-WNYC, or help us report this story with a personal experience. Have you been stopped by ICE for the way you look or the way you speak or where you happen to be at that moment? 212-433-WNYC, 433-9692, call or text.

Here's another way that some of you might enter. This is from USA Today columnist Rex Huppke today, who clearly disagrees with this ruling. Here's part of what Rex Huppke wrote. "I'd like to hear from all the white people who would be fine with an ICE agent stopping them in a Home Depot parking lot on a Saturday afternoon and demanding to see identification. I'll just sit here holding my breath," he wrote, while he waits to hear from all the white people, as he wrote it, who would be fine with an ICE agent stopping them in a Home Depot parking lot on a Saturday afternoon.

We can make that part of the call-in invitation. If you're not Latino or here illegally, specifically if you're white, as Rex Huppke puts it, what if this applied to your group based on something other white people were the most likely to be doing, and where white people tend to gather? 212-433-WNYC, 212-433-9692, call or text on that angle or anything else related. Eric in Brooklyn may be calling in on something related to that Rex Huppke challenge. Eric, you're on WNYC. Hi.

Eric: Hi. Thank you for taking my call. Piggybacking on what you just mentioned, I've been wondering why this hasn't been part of the discussion all along about illegal immigrants from places like Russia or Ireland or other places in Europe who are similarly illegally here and possibly doing nefarious or illegal activities, possibly also just working hard and trying to make a living. Where is the enforcement on that community, and why haven't we been talking about why Irish immigrants or others from Europe aren't being targeted as well?

Brian: Great question. We know, as I mentioned in the intro and has been in the news, there was that apparent profiling of Korean people, people from Korea in this country, in that raid at the Hyundai plant in Georgia last week, where the reporting says that about 475 people were detained by ICE, overwhelmingly Korean. Professor Nash, how would you answer the caller's question? Do you think that there are concentrations-- You already acknowledged the concentration of Latinos, for example, in Southern California. Are there concentrations of Irish immigrants or Russian immigrants, to cite the two examples the caller gave, who are not here legally, and is ICE leaving them alone based on race? That's the caller's accusation or suspicion.

Professor Nash: I think that one of the examples in this case actually helps to explain what, I think, is going on here, and certainly justifies the claims of racial profiling that are being made. One of the people whose experience was described in the case talked about the fact that when ICE was making arrests in that area and went to one of the work sites that is at issue in that case, the officer stopped and detained someone who appeared to be of Latino or Hispanic ethnicity, but left alone his co-workers who are lighter-skinned.

I think one of the things that we're seeing is this administration is using race in these arrests and that it is making judgments about who has the right to be here lawfully or not, using race. I'm not aware of them going after communities that are not communities of color here in the United States in the same way. We're seeing distinctions being drawn when in these big enforcement actions, or we're hearing reports of these distinctions.

I would just note, I suppose, that the government hasn't said that it's not using these factors in these arrests, that it's not using these factors in making these decisions. In fact, one of the points that Justice Sotomayor makes is that not only has the government not disclaimed that, it went to the Supreme Court to enable it to make arrests based on these factors.

Brian: Mihaly in Manhattan, you're on WNYC. Hello, Mihaly.

Mihaly: Thanks. I just want to point out that this criterion of having an accent or limited English, it can only be found out once you stop the person. It can be used as a basis for stopping. It's like when I got a computer delivered once in six boxes, and one box had a paper saying, "Open this box first."

[laughter]

Brian: I get it. That's an interesting catch-22 that he points out. Speaking Spanish or accented English can be a criteria for a stop, but you don't know if somebody's speaking English in a certain way or another language until you stop them. That point is self-explanatory. Here's another Kavanaugh quote from the ruling, and I want to get your reaction to this.

He wrote, "For stops of those individuals who are legally in the country, the questioning in those circumstances is typically brief, and those individuals may promptly go free after making clear to the immigration officers that they are US citizens or otherwise legally in the United States." What's the harm to the innocent? As bad as this may sound abstractly in immigration status terms, what's the harm? Kavanaugh says just a brief inconvenience. You'll be released if you're here legally. No harm, no foul.

Professor Nash: If you were to only look at Justice Kavanaugh's opinion, that would be a reasonable assumption. His opinion doesn't reflect the realities of how enforcement has been working in this administration or the realities of the facts that were put into evidence in this case. These are not people who described being subject to these stops, described instances where they explained that they were a US citizen or they had status. They provided their licenses. They were continually asked about their status.

One of the people involved in the case was put into a car and taken to a warehouse, where they were stopped and eventually later brought back, but they were taken away from the place where they were working. These arrests or these stops are being made by officers, in some cases, who are armed or with masks. The evidence shows that people are really terrified because of these.

It only means that people who appear to be of Latino or Hispanic ethnicity have to carry documents to be able to answer these questions and respond to ICE's inquiries. They might be subjected to the same questions over and over to multiple stops like this when they're simply trying to go to work and make a living. I think that this Justice Kavanaugh's concurrence really just does not suggest any kind of engagement with the actual experiences that are described by the plaintiffs and the associations that are involved in this case.

Brian: To the previous caller, a listener texts, "You can overhear a conversation and recognize that it's not in English." Another listener texts an important question: "What does this mean for local police forces that are actually prohibited from using the specified criteria to stop, frisk, and detain individuals?" I guess that's another version of the slippery slope question I asked you earlier. Could the Supreme Court now revisit the 1975 ruling in a larger way and not just as it applies to people suspected of being in the country illegally, but to what we call driving while Black and that sort of racial profiling at the municipal or state level?

Professor Nash: I think Justice Kavanaugh certainly seems to think that the Supreme Court will ultimately take on this case on the merits, and I think we'll have to see. We don't know what the other justices in the majority here think. It's not clear that they would adopt Justice Kavanaugh's view of this. If they did or when this case goes back to the Supreme Court, and I'm guessing that it will, it could be an opportunity for the court to diverge from its prior opinion, or hopefully clarify some of the aspects that the government is trying to rely on here.

One thing that I think might be an area that could bleed into other types of stops, then it would be concerning if it did, is the point that we were just talking about, which is Justice Kavanaugh's idea about the minimal harms of these investigatory or detentive stops. His view seems to be that they're brief and they're not so harmful, when I think the actual experience of someone who's being stopped, being interrogated, being approached by armed officers and having demands made on them, particularly over and over when they're simply trying to live their lives, is something that would be very concerning if and doesn't seem necessarily limited to the immigration arena.

Brian: We'll continue in a minute. We'll play something that Border Czar Tom Homan said on TV yesterday that's relevant, and also get to the case involving a plane load of unaccompanied minors that a lower court prevented from taking off to Guatemala. Stay with us.

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Brian: Brian Lehrer on WNYC as we continue with Lindsay Nash, associate and clinical professor of law at the Cardozo School of Law at Yeshiva University here in New York and co-director of their Kathryn O Greenberg Immigration Justice Clinic and co-director of their Immigration Innovations Center, and you at 212-433-WNYC, your calls and texts as we talk about the Supreme Court ruling yesterday that, at least for now, allows racial profiling and language profiling as an acceptable criteria for stopping people and checking their immigration status.

We're also going to get into the case in just a minute of the plane load of unaccompanied minors that a lower court prevented from taking off to Guatemala. Here's Border Czar Tom Homan on Boston TV channel 25 yesterday in what seems to me like a contradiction about targeting violent criminals or just anyone here illegally.

Border Czar Tom Homan: We don't target them. We target national security and public safety threats. If you're in the country illegally, that's not okay. They're in the country illegally in violation of law. They entered the country illegally, which is a violation of criminal law. It's a crime to enter the country illegally.

Brian: He says they're targeting violent criminals, but you're a criminal if you're just here illegally. He didn't use the word violent, so he's making a little bit of a distinction. What do you make of that? It certainly applies to the underlying issue here, rounding people up at a Home Depot in LA or a Hyundai plant in Georgia.

Professor Nash: This administration has made two big claims that are not necessarily in alignment, and that the data shows are actually moving in different directions in terms of what they're doing in enforcement and their priorities. The administration has repeatedly said it is targeting people who are violent criminals, violent criminals who are immigrants. What we can see from the data from places like the Deportation Data Project and Austin Kocher and others is that there's been an increase in arrests, but that increase has really been driven, particularly since the beginning of the summer, by arrests that are made of people who don't have criminal history.

The data reflects what these incidents reflect, which is that the administration's actual practice is not its stated goals of targeting people with serious criminal history. It shows what's driving these arrests is arrests of people who don't necessarily have that kind of history. I think it's the push that this administration is making to increase the arrest numbers however it can.

The evidence in the Perdomo case we were just talking about talked about some of the directions that supervisors gave to ICE officers to increase their creativity in making these arrests, to really push them to make arrests, however possible. I think that that is the real priority here, that's driving a lot of these arrests. I think that that's additional reason to be concerned about how these stop decisions and these arrest decisions are being made, especially since we don't have the kinds of oversight mechanisms that we have in other contexts once a person is taken into custody here.

Brian: In support of the administration on this, John in Brooklyn, you're on WNYC. Hi, John. Thank you for calling in.

John: Good morning, Brian. I'm pulled over. I'm a regular listener, and I voted for Kamala. I don't like Trump at all. The Democrats completely lost me going forward because of this issue and public safety altogether. I'm an immigrant myself, so none of your speakers could tell me otherwise. My family waited years to go through the process legally, photographs, fingerprints, interviews, sending forms, fees, and somebody just comes in, I go to the back of the line, and they just cut the line. No, I'm sorry.

I've been listening to your show all morning. Your speakers are making valid points, valid points, but cutting the line to me supersedes all the other things. Who cares about an inconvenience? There was a border patrol cop that was shot in Washington Heights. Where's the outrage from the Democrats? There was a woman that was burned alive on a train in Corny Island, as you know. That was also an illegal immigrant. Where's the outrage?

Then the Democrats hide behind words like detainers, waivers. There's a technical difference between them. They do verbal gymnastics. In Chicago, they've only honored 8% of detainers, 8%. If both parties work together, something could be done, but the sanctuary cities, they got to go. I'm never voting Democrat again unless they go away from that. That's my answer. I'm an immigrant myself.

Brian: Thank you very much for your call. We appreciate it. I think, Professor Nash, that gets to a very underlying tension in this country because supporters of this ruling, like John in Brooklyn there, will say it's fair for any country to actually have control of who's allowed in. There can be robust policy debates about how many people and from where, but allowing people to just come or stay here in large numbers without being authorized or to try to protect as many people as possible who are out of status, to oppose that is just common sense. What do you say to that?

Professor Nash: I think that some of the cases that we're seeing now and some of the disputes that are popping up now should actually speak to people who believe that, too. The reason is that some of these tactics that the government is using could equally affect people who did become citizens, people who did wait in line, people who did obtain forms of status in the way that the caller was describing.

Brian: The caller certainly doesn't think that. He's not on the line anymore, but try to convince him of that.

Professor Nash: [chuckles] What we're seeing in not just this case, but other cases, is that the government is trying to circumvent the procedures that we have for determining if someone has a form of status that they obtained in the way the caller was talking about, if the government is right that there's a reason they should lose that status, or maybe they never had a form of status to begin with. The process is how we figure out who's in those different categories. That opportunity to say, yes, I did this a particular way or I didn't, is what happens during that process.

If we decide that it's okay to live in a world that we want an enforcement system where the government's allegation alone is sufficient to take someone's status away, to determine someone's status, to impose those consequences, regardless of whether they had obtained status, that's going to impact people who do have status and the government just doesn't think so, as well as people who don't. I think that some of what we're seeing, these efforts to short-circuit these processes or completely go around them, should be relevant to people who have that view as well.

Brian: This is not the end of the line for this particular case. It is being sent back by the Supreme Court to a lower court. We'll see how they rule next on it, and it may come back to the Supreme Court for a more fulsome hearing and ruling. We'll see about that. Professor Nash, I do want to ask you about one other case before you go. On the attempted deportation of hundreds of unaccompanied minors from Guatemala, I think a lot of people might have missed this middle-of-the-night drama because it happened during Labor Day weekend.

Just to bring other people along, reading from a PBS version back last week, "Dozens of Guatemalan children are back in federal custody after a late-night court order temporarily halted their deportation. The ruling came after the unaccompanied minors had already been boarded on planes. A temporary restraining order blocks the deportations of such children for at least two weeks," and it goes on from there. What was the basis of the court ruling in that case? Why were there so many-- They talk about hundreds-- I think there were 70-something on the plane, but a lot of the reporting indicated this is really about 600 Guatemalan minors here without their parents. What's the story here?

Professor Nash: That case arose, basically, over Labor Day weekend. There's large numbers of unaccompanied Guatemalan minors, so children who are under 18 who don't have legal status and who don't have a parent or legal guardian in the United States were taken out of custody of the government. They're in custody of a slightly different agency, and the government was trying to put them on planes to return them to Guatemala. Now, many of those children were in the process of trying to make out their claims for relief through our immigration system.

Some were seeking relief because they'd been abandoned, abused, or neglected. Others were seeking relief because they faced persecution or torture in Guatemala, and those kids were afraid of return and didn't want to return. They were going through the process in which adjudicators would determine if they, in fact, had to return or if they were entitled to protection here. When the government started making efforts to remove them, the attorneys went to court, basically in the middle of the night, to try to get a temporary order stopping their deportation while they could continue that challenge.

The district court for the District of Columbia issued a temporary restraining order, as you mentioned, based on the factors that apply in that early posture. Two of the most important factors in that consideration are their likelihood of success on the merits and the possibility of irreparable harm if they're returned. The court, as is often the case in those emergency rulings, didn't issue a long opinion, but it did note this possibility of irreparable harm if they were to be returned, that harm being--

Brian: Sue the kids. Is my understanding correct that that was a Trump-appointed judge who made that ruling?

Professor Nash: That was not a Trump-appointed judge, although-

Brian: Oh, sorry.

Professor Nash: -that was an emergency judge handling the case. The case has since been transferred to a different judge, who will be the normal assigned judge on the case. That judge, I believe, was appointed by the Trump administration.

Brian: I see.

Professor Nash: Go ahead.

Brian: I guess the question going forward is, will that Trump-appointed judge issue a new injunction, since this is temporary, this one also is in limbo, all these kids are in limbo, or will the judge find the deportations of Guatemalan kids without assessing the risk that they face if they are deported individually be allowed to proceed? Yes?

Professor Nash: Yes. The parties have asked the judge for that kind of injunction. They've moved for a preliminary injunction and just completed briefing on that. The hearing is tomorrow, and I think we'll know much more tomorrow about what the judge thinks and what the judge might do.

Brian: Would the ruling just apply to one group, maybe the ones on the plane, which, again, correct me if I'm wrong, I think it was 70-something, but that there are 600 or so altogether that they're trying to include as a class, like in a class action suit?

Professor Nash: That's right. I believe that there were 76 that were involved in the immediate effort to remove those children, but the attorneys have sought relief on a class-wide basis, and that's where that larger number comes from. The judge could issue more limited relief as to certain individuals involved in the suit or could issue relief on a class-wide basis, depending on what the judge thinks about that motion.

Brian: I want to end with one more call because a number of people are calling in and writing in with versions of the question: "What can we do about this if we're outraged or upset by the idea of the Supreme Court legalizing racial profiling when it comes to immigration stops?" I'll take Denise in Manhattan very briefly. Denise, you have something that you say you're going to do, right?

Denise: Yes. I'm that white person you got that text about. I'm of Western European descent, Irish in my case. I'm bilingual in Spanish. My intent is to speak Spanish completely in public from now on, much like happened in World War II when the Nazis said that Dutch Jews had to wear yellow stars, and everyone started wearing yellow stars. They can go ahead and stop me, and I hope enough people do it that we can clog the system.

Brian: There's one method of activism, Professor. You're a law professor, so obviously, you're in this world where the most official and recognized or binding, we hope court rulings are binding, avenue for stopping policies that people think are unconstitutional goes forward. Do you have any thoughts about anything else?

Professor Nash: I love the idea of these acts of solidarity. I think that's really important. Lawyers, I think, tend to focus on providing legal representation, assisting in efforts to act as a legal team for people who've been taken into custody and who are impacted by this. I think folks who can support those efforts, that's really important, but I think other acts of solidarity and other acts of speaking out to make it known that this is not acceptable in our country are important. We saw the impact of public outcry when the first Trump administration was doing family separations, and I think that same kind of outcry should happen and can be effective.

Brian: Lindsay Nash, Cardozo law professor, co-director of the Kathryn O Greenberg Immigration Justice Center and co-director of the Center for Immigration Innovation there. Thank you very much for joining us.

Professor Nash: Thank you.

 

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