Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. Emily Bazelon will join us in just a minute. Emily, who writes about the law and how it affects people for the New York Times Magazine. You know some of her great work, probably, and teaches the art of the argument at Yale Law School. The context as we start the week is that it's the courts more and more and more than anywhere else where the line between the rule of law and autocracy is being established or redrawn. The Times reported last week that as of May 16, at least 160 rulings have at least temporarily paused some of the administration's initiatives. The Supreme Court on Friday made a temporary but possibly very important rule of law decision. If you took the weekend off from the news, you may not know this yet. We'll explain it. A little more context. We're going to cover the Supreme Court and the courts in general a lot on this show in the second 100 days of the Trump administration. Always so much hype around the first 100 days, but the second 100 days are where some things may become entrenched or not.

A period when the administration's version of how much unbridled power a president should have will meet some of what appears to be hundreds of lawsuits overall challenging Trump's claim to so much power as overreach or unconstitutional. They've even recently arrested a judge. You've probably heard that in Wisconsin, and the mayor of Newark, Ras Baraka, on alleged crimes tangential to the crackdown on immigration. We're having Emily today, Nina Totenberg, to continue the conversation tomorrow, just as a program note about a little continuity on this.

To make her intro official, Emily Bazelon is a New York Times Magazine staff writer, Truman Capote fellow at the Yale Law School, co-host of the Slate Political Gabfest, and the author of two national bestseller books, Charged: The Movement to Transform American Prosecution and End Mass Incarceration and Sticks and Stones: Defeating the Culture of Bullying and Rediscovering the Power of Character and Empathy. Emily, it's always great to have you. Welcome back to WNYC.

Emily Bazelon: Thanks so much. Great to be here.

Brian Lehrer: Can we start with Friday's seven-to-two ruling about people the administration wants to deport to Venezuela under the Alien Enemies Act? It doesn't settle the case, I realize, but I'm seeing it described as an important ruling. The Times says, "A sharp rebuke to the president on the fundamental issue of due process in our legal system." Can you remind us what Friday's ruling was about?

Emily Bazelon: Yes. Slightly complicated. As folks I'm sure know, there's been ongoing efforts by the Trump administration to deport people who are from Venezuela to El Salvador to a prison there, based on the Alien Enemies Act, which is this old statute from 1798 that talks about how you can deport people if there is an invasion. It has only previously been invoked in wartime in the United States. The idea that the Trump administration is propounding here is that this Venezuelan gang counts as an invasion, and they also haven't actually proved that people are in the gang, but they claim that these are gang members.

What's important about this ruling is the court is saying nobody is leaving the country and being deported under this law until there has been more due process, more opportunities for people to have notice and a hearing, and challenge the deportations. That's important because we just haven't known exactly how this was going to play out. We have some lower court rulings from district court judges saying, "Wait a second. I need to be able to review these cases." The Fifth Circuit, which is the appellate court in Texas and a couple of other states, had said, "Wait, no, we can't even hear this case. We don't have jurisdiction."

The Supreme Court said, "Oh, yes, you do, Fifth Circuit. You do have jurisdiction. We want you to consider what kind of notice is adequate here. Until all of that happens, nobody is getting deported who could be in this group of people covered by the Trump administration's claim about the Alien Enemies Act." It's an important ruling, and I think an important victory for due process and for recognizing that people have these basic rights to a notice and hearing.

Brian Lehrer: I actually want to read a few of the lines from this opinion by the seven justices. I don't think they named who wrote it, but I think our listeners would be interested in hearing a couple of these quotes. "We have long held that no person shall be removed-- Sorry, it starts even one step back from that by citing the Fifth Amendment to the Constitution. It says, "The Fifth Amendment entitles aliens to due process of law in the context of removal proceedings. We have long held that no person shall be removed from the United States without opportunity at some time to be heard."

Then they cite the Abrego Garcia case, the guy who the justices write was deported in error to El Salvador and now faces indefinite detention in a horrible facility there. The U.S. government says it is unable to provide for his return. With that as context, they continue about this case. "Under these circumstances-- meaning that kind of detention that somebody may face for the rest of their life in a horrible prison that's not even in their own country-- notice roughly 24 hours before removal, devoid of information about how to exercise due process rights to contest that removal, surely does not pass muster."

I'm curious for you, Emily, if you find that to be very strong language or indicative of anything larger about where they see the line between the rule of law and an executive autocracy. All three Trump appointees, Gorsuch, Kavanaugh, and Coney Barrett, voted against him in this seven-to-two decision.

Emily Bazelon: This is really basic. To take a step back, people who are immigrants, who are subject or threatened with deportation, have very few rights in the United States. They just really don't. It's minimal. You get an opportunity to be heard, and you're supposed to have notice that you can have that hearing. Usually, people get deported once they go into these proceedings. It's really hard to win. What the court is saying here is this is rock bottom, that you have to at least make this effort. There can't be zero due process.

We can't just take people out of the interior of the country and put them on planes and send them away, especially to prison, but anywhere, without giving them any chance to prove that they're not subject to deportation, that they're not in a gang, or maybe for whatever other reason, they should not be deported. That's what's at stake here. It's really basic, and it's important that the court is saying this. It's also incredible. I think we need to hang on to this, that the government would be trying to deport people without any notice and hearing.

Brian Lehrer: Yes. Trump reacted with an all caps post on social media. "THE SUPREME COURT WON'T ALLOW US TO GET CRIMINALS OUT OF OUR COUNTRY." To what you just said, does the post ignore the basic due process issue? This is maybe the most important thing in the whole conversation. First, the government has to prove that someone is a criminal before punishing them for being a criminal.

Emily Bazelon: Yes, that's exactly it. We know from some of the stories that-- 60 Minutes in the New York Times and other media outlets have researched and investigated that some of these people do not seem like they're gang members at all. They really don't seem to have any indication of that. The idea that these are all dangerous gang members, and we, the executive branch, think that, and you can just trust us, and the courts shouldn't look into that at all, that's really antithetical to how American democracy works, how the separation of powers work, what the whole role of the courts is.

Brian Lehrer: If the president's reaction was loud for being in all caps on social media, the reaction of his advisor, Stephen Miller, was maybe more chilling from a rule of law standpoint. He said on C-SPAN they may even suspend the writ of habeas corpus. Before we play this Stephen Miller clip, can you put on your Yale Law School hat, Professor Bazelon, and make sure everybody knows what habeas corpus is and why it's such a foundational right?

Emily Bazelon: Yes. Habeas corpus is the Latin phrase. It means you have the body. The idea is that you are petitioning the person who has physical custody of you. Usually, it's the warden of the prison or the facility. You're saying, "I shouldn't be here. I shouldn't be detained. I need to be able to challenge my imprisonment." It's that way of getting into court. Yes, we can play this clip from Stephen Miller. I just want to make clear that in the Constitution, it is clear that the only body that has the power to suspend the writ of habeas corpus is Congress in very limited circumstances.

Brian Lehrer: Here's about 15 seconds of Stephen Miller on C-SPAN on Friday.

Stephen Miller: Well, the Constitution is clear, and that, of course, is the supreme law of the land, that the privilege of the writ of habeas corpus can be suspended in a time of invasion. I would say that's an option we're actively looking at. Look, a lot of it depends on whether the courts do the right thing or not.

Brian Lehrer: There's a threat to the court at the end of that. What he's also asserting there is that we are under invasion from Venezuela. I guess it brings up the question of what is the legal definition of an invasion and also how unusual or Constitution challenging is what he's threatening.

Emily Bazelon: I think we all know that the definition of the word invasion refers to wartime. What the Constitution actually says in Article I is the writ of habeas corpus shall not be suspended unless when in cases of rebellion or invasion, the public safety may require it. You can see why, during the Civil War, Abraham Lincoln made a move towards suspending the writ of habeas corpus. I should note that then he pulled back, and actually, it was Congress who really decided to do this.

The notion that we are currently under invasion by a foreign gang from Venezuela. It just doesn't make sense. I should also note that we know from some of the reporting that security agencies, the FBI, et cetera, they have concluded that this particular gang in Venezuela that is the basis of these claims has little or no connection to the Venezuelan government. The notion that it is--

Brian Lehrer: Well, that's-- I'm sorry, finish. Go ahead. I apologize.

Emily Bazelon: No, just the notion that it is an arm of the government and that constitutes an invasion is undermined by our own intelligence conclusions.

Brian Lehrer: Right. I was going to jump in because that is the issue here, it seems to me, on the invasion claim. It's not that there aren't a lot of gang members from Tren de Aragua, and that they are a threat to the public safety, those who are here. I don't think anybody disputes that. This claim that gang members coming from Venezuela are being sent as an organized act of war by the Venezuelan government and that therefore they don't have the rights of individuals, from everything I've read, I don't think the government has really presented meaningful evidence of that.

As far as you know, has the Supreme Court ever had to rule before on whether something is an act of war or not to determine people's rights?

Emily Bazelon: That's a really good question. There's probably some ruling from the Civil War about habeas that relates to this. Of course, during Civil War, obviously, there was a rebellion happening. It wasn't like a question. I think part of what is so crazy making here unusual is that the government is not in a time of war. It's that kind of basic bar is itself very much contested. You're trying to take ideas, the Alien Enemies Act, or this idea of suspending habeas corpus during an invasion, and apply it in a context that it just hasn't been applied before.

Brian Lehrer: Here's one more stretch of Stephen Miller on C-SPAN about another 20 seconds where he argues that the Supreme Court, and I wonder if this is going to make it to the Supreme Court and if conservative justices may ultimately agree with him, where he argues that the Supreme Court doesn't even have jurisdiction over cases like these because Congress has passed laws that lock the judicial branch out of immigration decisions. Many listeners may be thinking, "What?" That's the argument here; that Congress has passed laws that lock the judicial branch out of immigration decisions almost entirely. Here's a few seconds of that.

Stephen Miller: At the end of the day, Congress passed a body of law known as the Immigration Nationality Act, which stripped Article III courts, that's the judicial branch, of jurisdiction over immigration cases. Congress actually passed; it's called jurisdiction stripping legislation. It passed a number of laws that say that the Article III courts aren't even allowed to be involved in immigration cases.

Brian Lehrer: Emily, do you know what law or laws he's talking about or how accurate that claim is? He asserts that the courts, later in that clip part that, is beyond what we excerpted, are at war not just with Trump, but with past acts of Congress.

Emily Bazelon: There is an important act that governs a lot of immigration law, and there are some provisions in it that limit what the courts can do, but it is not jurisdiction stripping. Jurisdiction stripping means no hearings at all. No rule for the courts whatsoever. They just get pulled out of the entire process. It is not how American law normally works, and it is absolutely not how immigration law has ever worked. That's just not how it works. There are immigration judges who work for the executive branch. They are different from our federal courts, with life tenure. When they make rulings, they can then be appealed to the regular federal courts. That's how it works. Not what Stephen Miller said.

Brian Lehrer: To take as big a step back as we can, I think all of what we've been talking about so far, mostly about this one decision on Friday and some things related to it, this all goes to your New York Times Magazine article last month called the Judge's Dilemma. Can you frame up the big picture for us on that in terms of where we are today in May 2025?

Emily Bazelon: Yes, sure. I was writing in this piece about this conundrum the courts are facing, which is that lawyers for the federal government, in other words, the Department of Justice, are coming into court and they are saying things that don't seem to have a basis in fact or refusing to answer questions. We've seen this in some of the immigration cases, including Abrego Garcia's case. We've seen it in a lot of other contexts where Trump executive orders are being challenged. It is very destabilizing to the courts.

The courts are used to being able to rely on the Justice Department, on the government, to tell the truth and have candor. Lawyers have a duty of candor. It's part of the code of ethics for lawyers, and especially government lawyers are expected to come in, tell the truth to the extent that they can, admit if they don't know the answer, and also just treat judges as if they're interested in making sure judges think that their orders are going to be followed. There's just a certain amount of deference that courts get from lawyers.

All of that has gone by the wayside in a whole bunch of cases since Trump's election. That creates a dilemma for the courts, because if you can't rely on the good faith and truth-telling of the government, then you have to start investigating every single thing. That is just never how the government has operated. There's a phrase for this whole idea that's been out there, which I find helpful: the presumption of regularity. The idea is that until now, courts have presumed the regularity of the government's presentations in court.

You just assume yes, we can basically trust that. That is really, really being shaken by the way the Justice Department lawyers are conducting themselves, perhaps with an eye to the president as their client. It just confuses things. It's part of why you're seeing the Supreme Court, I think, be more emphatic in its rulings, because it's not sure that if it doesn't say something really clearly that the Trump administration is going to obey the order.

Brian Lehrer: Can I get your quick take on the case of the Wisconsin judge who they've now arrested and charged with a crime for letting someone out of her courtroom in a way that was allegedly illegal, for willfully helping him to avoid contact with ICE agents who were there at the courthouse? Is this an escalation against the judiciary, or more of a one-off where maybe the judge actually did something wrong?

Emily Bazelon: It's certainly a show of muscular intimidation. I think reasonable people can disagree about whether the government will ever be able to prove that this judge intentionally tried to let someone go because ICE was there about to pick him up. It seems like there are enough facts in dispute that we just don't know the answer to that. Even if that did happen, the idea that you need to go pick up a judge and haul her away in handcuffs, you only do that as a show of force if you're trying to send a message to other people about what you expect state court judges to do when ICE shows up, and this is in the subject of some dispute.

In the first Trump administration, there were a number of courts around the country, state and local courts, which said, "We don't want ICE here and we're not cooperating." They were arguing that it was really important for the integrity of the safety of their own communities to have people trust the local courts, trust that if they came in as witnesses to testify or as jurors, they weren't going to get carted away by ICE. That's the reason why you have courthouses where you might have a boundary here. That's what's at stake in this conversation. Judge Dugan in Wisconsin, I think, has become a pawn in that conflict.

Brian Lehrer: Last question, Emily, and about our last minute and off the topic we've been talking about, but still related to executive power of interest to us here in the context of the federal funding freeze executive order regarding NPR and PBS, my question is much more broad than that. You wrote a Times Magazine article back in February called, Can He Do that? Which examined Trump's power to determine federal funding for all kinds of things that he's trying to block or impound is the legal word, I think, after Congress authorized the money. Is there a short version of what conclusion you came to?

Emily Bazelon: The president does not have the power to just decide not to spend money after Congress appropriates it. That's just not how it works. The problem is, what do you do about it when that starts to happen? What we're seeing in some of these cases is the executive orders are clearly illegal, and judges are blocking them because they invoke this kind of sweeping executive authority. We know from the Constitution and also from the Impoundments Act passed in the 1970s that Congress has this power, not the president.

Then, in some cases, the president has come in and said, "Well, no, I'm just canceling these contracts one by one." It turns out that you can cancel federal contracts for a lot of reasons. That is trickier for the courts to address because then they have to find that the government is basically not telling the truth, that it's a pretext. Really, they're impounding the funds, but they're claiming to have these contractual problems with spending the money. That's harder. It's just a harder thing to ask of the courts.

Brian Lehrer: Emily Bazelon, New York Times Magazine staff writer, Truman Capote fellow at the Yale Law School, co-host of the Slate Political Gabfest. We always learn a lot when you come on, Emily. Thank you so much for doing this today.

Emily Bazelon: Thanks so much for your great questions. Have a great day.

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