HOSTS

PETER SHAMSHIRI

MICHAEL LIROFF

RHIANNON HAMAM

[ARCHIVE CLIP, Supreme Court: Immigration and Naturalization Service against Lopez-Mendoza.]

Leon Neyfakh: Hey, everyone. This is Leon from Prologue Projects. On this episode of 5-4, Peter, Rhiannon and Michael are talking about INS v. Lopez-Mendoza, a case from the 1980s about the extent to which constitutional rights apply to deportation proceedings. Two undocumented Mexican workers were arrested while on the job by Immigration and Naturalization Service agents and ordered to be deported. The workers sued, arguing that their Fourth Amendment rights were violated because the agents didn't have a warrant when they entered their workplace. But the Supreme Court sided with INS, saying that immigration cases are civil, not criminal, so people facing deportation need not be afforded the same protections as criminal defendants. This is 5-4, a podcast about how much the Supreme Court sucks.

Peter Shamshiri: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have filled our country with racism like a Young Republican group chat. I'm Peter. I'm here with Michael.

Michael Liroff: Hey, everybody.

Peter: And Rhiannon.

Rhiannon Hamam: Hello. Can we just talk about the young lads in the group chat?

Michael: [laughs]

Rhiannon: Peter's referring to a Young Republicans group chat where they're all gross, racist Nazis and, you know, their identity, whatever has been revealed. So there's some photos going around. This is a type of guy.

Peter: Yeah.

Rhiannon: With a type of look. And I think we should all start being braver and saying that this look is disgusting.

Peter: It is. Yeah, it is.

Rhiannon: You ugly!

Peter: They are of a type. And we obviously are woke kings and queens here on this podcast, so we don't want a body shame, per se, but it is weird that they all look—like, they're all ugly in the same way. And, like, once every three months, there's a new Young Republican group chat. It's completely loaded with Nazis, and then the pictures come out and you're like, "Again. Again with this guy."

Rhiannon: Worst suits you've ever seen. A real ruddy sort of quality to the skin. Look like they smell like boiled hot dogs.

Peter: Mm-hmm.

Michael: They somehow both look childish, like cherubic and, like, 45 at the same time.

Rhiannon: Yeah!

Michael: It's weird. It's weird.

Peter: I think something about conservatism, they don't have a good sense of style, but they are obsessed with certain, like, class markings. So they'll have, like, nice suits, but they look like shit. And they'll have, like, really bright colored ties that I'm sure are, like, relatively expensive but, like, don't look good. The haircuts are all fucked up.

Michael: Oh, the haircuts are real bad.

Peter: It's very bizarre. Like, I just feel like more research is needed. You know what I mean? Like, we're all seeing this guy. Someone who's sort of like a student of guys needs to go out there and put their PhD thesis together. What's happening?

Rhiannon: There's so much material here.

Peter: All right, this week's case, INS v. Lopez-Mendoza. This is a case from 1984 about your constitutional rights in deportation proceedings. This year, we've been covering a ton of modern cases from the Supreme Court, all of the sort of direct facilitation of the Trump administration by the Supreme Court. But we wanted to go back in time a little bit and talk about an old case that is facilitating the Trump administration almost as directly.

Michael: Mm-hmm.

Peter: Couple of Mexican immigrants, allegedly undocumented, here unlawfully, of course, were picked up by the INS, Immigration and Naturalization Services. They were arrested without any warrant in sight. An immigration judge proceeds to order them to be deported. They challenged their arrest and deportation order on the grounds that they violated the Fourth Amendment, which protects against unreasonable searches and seizures. But the Supreme Court, in a five to four decision, said, "Who cares? Get outta here. Get outta here, guys."

Michael: "Boo! Go back to where you came from!"

Rhiannon: "Yeah, get the fuck out of here and forget the Constitution, you know?"

Peter: "It's not for you."

Rhiannon: "Yeah, it's not for you." That's basically what this case comes down to. Let's talk about the Constitution. Let's talk about, you know, what makes an arrest legal or illegal according to the Fourth Amendment. We've talked about the Fourth Amendment a lot on this podcast, obviously, because the Fourth Amendment defines what your constitutional rights are basically, like, as to the police. What can the police search, what can the police seize? Can the police arrest you? These are rules, constitutional rights that come out of the Fourth Amendment.

Rhiannon: So if we're talking about a criminal case, if we're talking about the rights of criminal defendants, if we're talking about you on the street, and the police walk up to you, what does the Fourth Amendment say that the police have to do? What do officers need in order to, like, enter a place to search, to arrest somebody? Well, generally, we know the Fourth Amendment says no unreasonable searches and seizures—and there's plenty of fucking Supreme Court cases that interpret what this means. But in general, for this case, we're thinking in the world, the realm of the warrant requirement.

Michael: Mm-hmm.

Rhiannon: Like, generally—there are lots of exceptions, sure. But generally, in order to search a place, in order to show up somewhere and just arrest somebody, you need a warrant. You need a search warrant, you need an arrest warrant. That's the world you would think that we would be in, except here's a case where the Supreme Court says, "Nah. Immigration court, immigration proceedings? That's something different."

Rhiannon: So place yourselves in the year 1976. INS officers, like Peter said, these are Immigration and Naturalization Services agents, federal agents, they roll up to a transmission repair shop in San Mateo, California, where Adan Lopez-Mendoza works at the time. The INS agents, they do not have a warrant to search this place, nor do they have an arrest warrant for Lopez-Mendoza or anybody else. And in fact, the owner of this business straight up refuses to allow the INS agents to talk to any of his employees.

Rhiannon: If you're thinking back to the Fourth Amendment context, if an owner of a house or an owner of a business gives consent, says, "Yeah, cops. You can go in, you can search," right? That would give the cops permission under the Fourth Amendment, and make whatever search they do constitutionally valid, right? Here, the owner of this transmission repair shop says, "No, you cannot talk to my employees." Well, what do the INS agents do? They do it anywhere. Nevertheless, while one agent continued to talk to the business owner, another goes in the shop, and after a few questions, Lopez-Mendoza gives his name and he says that he's from Mexico. The INS agent places him under arrest.

Peter: Busted, buddy. No Mexicans allowed.

Rhiannon: Yeah. The INS agent places him under arrest. Lopez-Mendoza is taken to, I believe, first a county jail, and then it goes into immigration court, where the federal government brings deportation proceedings against Mr. Lopez-Mendoza, again, having been on premises that were entered, searched by federal agents with no warrant, and arrested without a warrant.

Rhiannon: Another man in a separate case, but these cases end up being consolidated, brought together to the Supreme Court at the same time. Elias Sandoval-Sanchez was arrested in 1977 at his place of employment, which was a potato processing plant in Pasco, Washington. Again, INS agents show up to that plant, and they start to check for what they call, of course, "illegal aliens." During a time where workers are transitioning between shifts, INS officers put themselves at the exits of the plant and basically just start talking to everybody, you know, lobbying questions—who are you and where are you from—at the employees walking in and out.

Peter: This is like a few decades before ICE is like an actual agency. But this is ICE behavior, right? The immigration—the immigration agents sort of basic functionality has not really changed. They have very light regard for the law.

Rhiannon: Fishing expedition.

Peter: Everything is just—yeah, everything is just sort of a fishing expedition where they're just sort of prodding around, waiting for an excuse and then pouncing.

Michael: Mm-hmm.

Rhiannon: And so Sandoval-Sanchez is one of the people who is questioned by an INS agent. In fact, there's some mix-up where an INS agent sort of assumes that somebody else is Sandoval-Sanchez, asks that person some questions and thinks that that person acts suspiciously. There's a lot of dipshit federal agent behavior here that's not legally sound nor reasonable. But at the end of the day, what happens? Elias Sandoval-Sanchez is also arrested, taken, I believe, at first to a local jail. And just like Mr. Lopez-Mendoza, is put in immigration proceedings, in deportation proceedings.

Rhiannon: And both of these men assert—now wait a minute, we were arrested, and in fact, INS agents, you know, federal cops were searching the premises where we were without a warrant. This is in violation of our Fourth Amendment rights. This is in violation of our constitutional rights, and so your deportation proceedings that you are bringing against me to force me to leave this country, to be deported, those deportation proceedings are only being brought because you illegally arrested me in the first place. You violated my constitutional rights. So this is what Mr. Sandoval-Sanchez and Lopez-Mendoza are arguing, and this is how we get to the Supreme Court.

Peter: Yeah. So let's talk about the law a little bit. The Fourth Amendment says that you cannot be subjected to unreasonable searches and seizures. The way that the courts generally deal with this is that if cops gather evidence in an illegal search, they cannot use that evidence against you. It's what's called the "exclusionary rule." The evidence is excluded from consideration. So these guys are saying, "Hey, my arrest was illegal, so I can't constitutionally be deported based on that arrest." Right? The fruits of that arrest should be excluded from consideration here.

Michael: You may have heard of this called the fruit of the poisonous tree.

Rhiannon: Mm-hmm.

Peter: Yes. If you're already in law school, at which point—I don't—I don't think normal people have heard of that.

Michael: Or you watch a lot of Law & Order. But yeah, that's right.

Rhiannon: They talk about it on Law & Order. Yeah.

Peter: True. True. So all right, one thing to keep in mind here is that the question in this case isn't whether the Fourth Amendment was violated. We're sort of assuming for the sake of argument that these guys did have their Fourth Amendment rights violated. The question is whether the fact that their arrest was unconstitutional means that they can't be deported.

Michael: Right.

Peter: In other words, does the Fourth Amendment actually apply to deportation proceedings, or not really? Right?

Michael: Mm-hmm.

Peter: Sandra Day O'Connor writes the majority here.

Rhiannon: We haven't talked about Sandy in a long time.

Peter: Now we've been so focused on modern cases that sometimes you lose sight of the classics, the classic villains that we all grew to love. Sandra Day O'Connor, first woman on the Supreme Court. Proof that diversity does not work.

Michael: [laughs]

Peter: Sandra Day O'Connor starts off by saying, quote, "A deportation proceeding is purely a civil action to determine eligibility to remain in this country, not to punish an unlawful entry, though entering or remaining unlawfully in this country is itself a crime." Now this is actually incorrect. Remaining unlawfully in this country is not always a crime. Generally it would be a civil offense. So right out of the gate, justice of the Supreme Court just misstating the law in a very fundamental way. By the way, the dissent corrected this. The dissent was like, "You're wrong about that, by the way." And she was like ...

Rhiannon: "Leave it in."

Peter: "I'm not gonna edit it."

Rhiannon: Yeah, because what's the purpose, right? Why is she making this argument? So that immigration proceedings and immigration law are something totally separate from criminal law, where constitutional rights apply.

Peter: Right. So her big picture argument here is that immigration proceedings are civil proceedings, not criminal. And we generally do not apply the exclusionary rule in civil proceedings, so we do not need to apply it in the deportation context. This is sort of a half-baked argument, I think. It's true that rules tend to be less stringent in the civil context, but that's because the stakes are, generally speaking, lower, right? In criminal cases, you can go to prison, you can have your freedom stripped away from you. In civil cases, that's generally not true. In most of them, you can just lose money or property or whatever, right? But these people are at risk of being deported, which does seem like a pretty big imposition on your freedom, right?

Michael: And in between being detained and imprisoned.

Rhiannon: That's right.

Peter: So I think saying these are civil cases and then washing your hands of it, it's just not really reckoning with the reality of these cases, even if it's true that they are civil cases. And if you're sort of wondering, well, what makes something, like, for sure a civil case as opposed to a criminal case, the simple answer is again, well, like the risk of prison time. But the more long-winded answer is it's arbitrary. You know, there are many situations where it's a very gray area, and frankly, this is one of them. But she hasn't really reckoned with that.

Michael: Right.

Peter: So she then does an analysis where she says, "Okay, we need to weigh the cost of excluding the evidence against the benefits." And in this section she makes several very stupid points.

Rhiannon: [laughs] Longest pause ever. Pause for breathing.

Peter: Well, I mean, first of all—and we'll circle back to this but, like, process what I just said, right? Because again, we're sort of assuming that they had their constitutional rights violated, right? And then we're deciding what to do about it. Do we exclude the evidence that was illegally obtained or not? And she's like, "All right, let's weigh the costs against the benefits." And it's like, well, why? Because if you—if you've already—like, if there's a determination that their rights have been violated, then why are we, like, doing policy to figure out whether we should care?

Rhiannon: Yeah. Yeah, and why are we deciding the value, the value of that violated right?

Peter: Right. Right. So ...

Michael: But the cost benefit analysis is sharp, so ...

Peter: Yeah. So then she gets into it. So first she says even if we exclude evidence from these illegal arrests, other evidence could be used to deport them. Which, like, yeah, that's true in, like, every case, right? If some evidence is excluded because it was illegally obtained, you can still use other evidence to convict someone of the crime, right? That's just how evidence works. So, like, what—what are you trying to say here? I don't quite get it. Second ...

Michael: It doesn't make any sense.

Peter: ... she says that the vast majority of these cases, 97.5, end in self deportation. So it's very rare that immigrants who are in this circumstance actually challenge their arrest. And then it's even rarer that they challenge it on these, like, Fourth Amendment grounds.

Rhiannon: Yeah. Just to paint the picture, often if somebody, if a migrant is arrested, often one of the first things that happens is they are offered to sign papers where they agree to be quote-unquote, "voluntarily deported." So that's what she's referring to, that in almost 98 percent of these cases, immigrants are signing to voluntarily—quote-unquote, "voluntarily self deport." Never mind that often this paperwork is not properly explained to them, not in a language that they understand, et cetera, et cetera.

Peter: Right. It's either, like, self deport or get, like, run through this, like, pseudo justice system.

Michael: Right.

Peter: So anyway, the point that she's trying to make here is that if we exclude the evidence, it won't deter officers from making illegal arrests, because these challenges are so rare.

Michael: Mm-hmm.

Peter: Again, I just have to say this feels like a weird analysis, like she's trying to analyze whether excluding evidence will deter officers from making illegal arrests. But, like, why is this the analysis? Like, isn't a constitutional violation just not allowed either way? Like, why are we being like, "But it won't deter them. They won't care." It's like, okay. Well, shouldn't you then punish them for it if you think that they're not gonna—like, I don't—it doesn't really make any sense. Why are we trying to figure out the policy benefits of constitutional violations? That's like what is constantly running through my head when I'm reading this shit.

Michael: And she has it backwards. I'm sorry. It's so crazy. Like, yeah, the stats tell you that the costs of excluding this evidence are low because 98 percent of people voluntarily deport anyway. So we're talking about the thinnest slice of arrests even potentially having this impact, a deportation proceeding. But the benefits are actually, like, pretty stark, because if INS agents know one, that they can get away with violating the Fourth Amendment without remedy, and two, that most people who they violate the Fourth Amendment against in order to detain will voluntarily self deport, they could just go fucking hog wild. And they know it and they will.

Rhiannon: This is an analysis that posits, that starts from the foundational assumption that ensuring people's constitutional rights are not violated is a heavy burden on the government, that cops should not actually have to worry themselves with. That it's too hard, that it's too much, that it's extremely burdensome for them to do what they're supposed to do, which is round people up and get them deported.

Rhiannon: And the stats thing is, like, so ridiculous. This is supposed to be convincing to me because, you know, nine out of ten, almost ten out of ten people, like, you know, quote-unquote, "agree to be deported." Okay, well, take it in criminal cases then. Ninety-eight percent of cases end in a plea. So are we just saying the Fourth Amendment doesn't apply, then? Police can just violate everybody's Fourth Amendment rights, because all these cases basically end in a conviction anyway. Right? It's just ridiculous. This is so stupid.

Peter: She's talking about the incentive structures created here, but she only talks about it in one direction. She's like, "Well, I don't think the officers will be deterred if we exclude the evidence." It's like, okay, but if you don't exclude the evidence, what have you incentivized them to do?

Rhiannon: Exactly. Exactly.

Peter: Like, piece that together.

Rhiannon: Yeah. The cost analysis is also only in one direction as well. What about the cost to a society that Fourth Amendment rights are being violated, that people's constitutional rights are routinely being violated? There's a human cost here. This is not in the calculation at all, of course.

Peter: Right. The last thing she says is that INS has its own internal rules that prevent Fourth Amendment violations, right?

Rhiannon: [laughs]

Peter: Like, it has its own policies and procedures, basically saying, "Look, we don't need to worry about it because they handle this internally." Now think about how incoherent this is, okay? She's like, "We don't need to address these Fourth Amendment violations because they have their own internal policies and procedures." But first of all, if those policies and procedures worked, there wouldn't be a violation to begin with.

Michael: Right.

Peter: The fact that there is a violation is an indication that those policies and procedures are insufficient, right?

Rhiannon: Exactly. This is like saying, "Well, you tried. So, like, because they are trying, we're not gonna punish them for violating the Constitution." And the other thing here is like, doesn't the fact that they have internal policies and procedures for not violating the Fourth Amendment sort of indicate that they do believe that evidence will be excluded? Like, they're trying to avoid violating the Constitution to avoid the consequences. And now you've said there are no consequences, so what do you think is gonna happen to those policies and procedures?

Rhiannon: Great work all around, team.

Peter: It's just so baby brained that it's hard to comprehend. And the whole opinion is, it just sort of trails off like this, and you're like, you just—you're just sort of left being like, what the fuck was that?

Rhiannon: So illogical.

Michael: Yeah. You know, the dissent gets in on this point amongst many others, but I think really well. It's by Justice White, and he makes the point that, like, not only did INS assume that the exclusionary rule applied, everybody did. Like, the treatises at the time did. There was circuit court of appeals, you know, precedent saying that it applied. Practitioners, you know, immigrant lawyers, everybody thought it applied. And his point is, like, you're doing incentives for individual agents. What about systemic? He actually uses the word "systemic," which is kind of wild. Systemic incentives for, like, the agency as a whole. They developed these procedures you're talking about in that environment, in response to that environment. They're like, "Oh, the exclusionary rule applies, so we better develop rules to prevent us from violating the Fourth Amendment and having our evidence excluded." Like, that's—he's very good on this. He's very good in general, I think. I mean, I'm grading on a curve because this is, you know, the '80s or whatever. It's very different.

Peter: It's also like you're like the Harlem Globetrotters up against this majority opinion. You know what I mean? It's just ...

Rhiannon: Yeah. And Justice White is not some, like, radical left lib, anything. Like, yeah.

Michael: No. Not at all.

Rhiannon: Yeah. This is a very, like, practical—quite like, I would say, like, actually conservative.

Peter: Right.

Rhiannon: Just talking about, like, the reason why you have the Fourth Amendment and these policies, and these things are effective.

Peter: Mm-hmm.

Michael: Right. So, you know, he makes some good points that we haven't covered yet. I just want to highlight those. You know, he makes the point that in criminal proceedings, the exclusionary rule generally applies to the case in chief, but not to a lot of the collateral proceedings, like, for example, grand jury testimony and things like that, grand jury proceedings. And his point is like, well, look, the deportation proceeding, this is the case in chief. This is the real—this is the thing, right? This isn't a collateral proceeding. If you lose this, you're gone.

Peter: Right. This is where your freedom is at risk.

Rhiannon: Yeah.

Michael: Right, exactly. So he's like—I think he has a much better telling of what the case law says here, right? Like, why you might do cost-benefit to, like, ancillary proceedings to the main criminal trial, but why cost benefit analysis is not appropriate here. He also makes the point that O'Connor brings up alternative remedies, and he's like, you know, like, suing the government. And he's like, "Look, what the fuck are you talking about?"

Rhiannon: They're deported. What are you talking about?

Michael: They're deported. They're—what, they're gonna sneak back in to file a lawsuit? Like, what planet are you on? It's. It is the '80s, and everything was more genteel back then in the pages of the Supreme Court. But in those standards, this is a pretty brutal decision, I think.

Rhiannon: Yeah.

Michael: It is very surgical in the way it just goes through point by point by point. Like Peter mentioned, he explains how she got the remaining in the country law wrong, like, literally misstated the law. It's just—it's very good. I was impressed. I was impressed with this.

Rhiannon: Yeah, it's a pretty solid dissent—this is a five to four decision. The other three justices in dissent each write separately. These are shorter dissents. Justice Stevens writes, I think, a sentence that says, "I join Justice White's dissent." He has one sort of technical thing where he says, "I don't agree with this one thing, but it doesn't matter." Now Justices Brennan and Marshall write separately, each of them just a couple of paragraphs. They also agree with Justice White, but they're sort of just adding, they're adding one more layer to the analysis. So Justice Brennan says, for example, "Yeah, I agree. The exclusionary rule applies here, but I actually think the exclusionary rule applies not just because of how effective it is as a deterrent and because we need things like this deterrent even in immigration proceedings, but I believe the exclusionary rule applies because the Fourth Amendment applies in immigration proceedings. And the Fourth Amendment requires the exclusionary rule."

Peter: Right.

Rhiannon: So not just this kind of, like, policy or, like, value to having the exclusionary rule. Like, should we have it, should we not? Is it an effective deterrent? Is it not? Right? Justice Brennan is saying, "No, the Fourth Amendment applies here. These men have Fourth Amendment rights. The Fourth Amendment requires the exclusionary rule to apply."

Peter: Sort of what we were saying where it's just like O'Connor is like, "Well, we're gonna use this analysis where we figure out whether we're gonna exclude this evidence by figuring out whether it would, like, deter officers from doing illegal searches." And they're just kind of saying, n, the Fourth Amendment says you can't conduct unreasonable searches and seizures, so the fruits of those are not allowed in court. Like, very cut and dry, very, you know why are we doing policy shit here? Just very similar to what you were saying.

Rhiannon: Yeah. He says, quote, "The government of the United States bears an obligation to obey the Fourth Amendment. That obligation is not lifted simply because the law enforcement officers were agents of the Immigration and Naturalization Service, nor because the evidence obtained by those officers was to be used in civil deportation proceedings." Whatever, Sandy, you want to do in terms of carving this out and saying this is different and not a criminal case and all of that, Brennan says, no, look at who is doing the action. That is the government, right? The government is the one that is restricted by the Fourth Amendment. The government must not violate people's constitutional rights, and so the Fourth Amendment applies here. Sandy, you're doing distinction without a difference.

Rhiannon: Justice Marshall basically saying the same thing. Again, I think this isn't even two paragraphs, but Marshall emphasizing, just like Brennan does, the quote, "constitutionally-mandated character of the exclusionary rule." He says, "In my view, a sufficient reason for excluding from civil deportation proceedings evidence obtained in violation of Fourth Amendment is that there is no way to achieve the twin goals of enabling the judiciary to avoid the taint of partnership in official lawlessness, and of assuring the people, all potential victims of unlawful government conduct, that the government would not profit from its lawless behavior, thus minimizing the risk of seriously undermining popular trusts in government."

Rhiannon: Again, what do we have the Constitution for? It's to restrict the government. It's to ensure that individuals have rights that are protected when they come in confrontation with government actors. If we just don't have the exclusionary rule, if we just say, "Well, the Constitution doesn't apply" in this huge area of the law where tons of people are affected, we really risk causing, like, mass distrust in the government, right? Knowing that the government is going to use the quote-unquote, what he calls, like, the "profit of their violations of the Constitution," they're gonna use that against you, this is not a good system.

Peter: Right. You know that just made me think part of Sandra Day O'Connor's argument genuinely seems to be like this affects so few people, right? The vast majority of immigrants in this situation self deport, you're only getting a handful of challenges like this and so it doesn't really matter. And, like, even if we apply the exclusionary rule, it's not gonna change how officers act, right? But contrast that with, like, a case like Citizens United many years later, where again there's like this First Amendment right that only applies to a very small handful of people, right? Only, like, really rich people can genuinely partake in the right that was created in Citizens United. Did that matter? Did they, like, factor that into the analysis? Of course not, no.

Rhiannon: Right.

Peter: No, no. Bald eagle crying, you know? Like, if you attack, you know, any one of these persons' rights, it's an attack on all of us. Just sort of different ways of analyzing the law depending on who is the impacted group.

Rhiannon: Yeah. And Marshall, you know, flipping that, like, cost-benefit stupid shit analysis right on its head. Okay, Sandra Day O'Connor, you're saying this applies in such a small number of cases. No, Marshall is saying this applies to our fucking society. This applies to people that this happens to routinely, and people watching this, people seeing how cops act and how the government benefits from violating people's rights. This affects everybody.

Peter: It literally affects everyone not in, like, some abstract way where it affects you psychologically, but like if, like, warrantless, suspicionless arrests are allowed, then, like, the average person walking around is at risk of being arrested or interrogated by INS agents, right? It's what we see now with ICE, where citizens are very consistently impacted, right? It's not just like, oh, we're gonna lose trust in the government, it's like, no, like, this gives them leeway to abuse the rights of the median person if they so choose.

Rhiannon: That's right.

Michael: Right. Yeah. I think that's why this case is good to talk about, right? Because ICE is the product of, you know, post-9/11 statutes, the creation of DHS and all that, but its culture goes way back. And that culture has been created in part, in large part, I would argue, by the Supreme Court and by its attitude of permissiveness towards government malfeasance when it comes to immigration proceedings and when it comes to removal proceedings, deportation, all that stuff. Like, it's been a consistent Constitution-doesn't-apply or applies-at-a-very-discounted-rate attitude. And we've talked about it before. We talked about it in historical cases, we've talked about it with contemporary cases like Trump v. Hawaii. But yeah, this goes all the way back to the Chinese Exclusion Act and deporting communists during the Red Scare. And this case right here, you know, it set the stage for the current world we live in.

Rhiannon: Mm-hmm.

Michael: And if we want to build a better one, we need to change more than just, you know, who gets to wear those stupid vests.

Peter: In some ways, this case is very distinct from the way the modern court analyzes this issue, but it also laid the groundwork very clearly. Like, the conservatives now have this very fleshed-out theory of constitutional rights in the immigration context, where they view those rights as sort of intention with the power of the executive branch. The executive branch has broad discretion to regulate immigration as they see fit, and so immigrants rights give way to that a little bit, right? That's not like a framework you see as much in these older cases, but you can see that the court already views deportation proceedings as existing in a sort of liminal space where there are fewer constitutional protections.

Rhiannon: They already did the cost-benefit analysis for them.

Michael: Right.

Rhiannon: They came to the conclusion that immigrants' rights are not as important as the government's power to deport them. And so you see it's A to B.

Peter: Right.

Michael: Mm-hmm.

Peter: She's doing the scales of justice where, like, a Mexican person weighs nothing. Like, she keeps putting him on the scale and nothing changes.

Rhiannon: Yeah.

Peter: At this stage in 1984, the conservatives don't have a real theory to rely on, so they're just sort of like, making things up as they go. And so in a way, it's like right wing jurisprudence and microcosm, right? They come up with a political position first, and then they start backfilling the justification. And so now in 2025, 40-something years later, they have a sort of foundation to rest all of this upon. But at the time in the '80s, they're just sort of like spitballing.

Rhiannon: Yeah. Yeah, what if we did a law and economics kind of thing for this, you know?

Peter: Like some shit about deterrence, do a little bit of cost-benefit. You're just talking out your ass the whole time, you know?

Michael: One thing I was thinking about reading this opinion is that, like, you see the shit current Supreme Court is churning out, and you're like, "God, these guys are just—they're idiots. They're just not bright. They're not playing a particularly nuanced game."

Rhiannon: Like, they're obviously not right on the law. They're not right. Yeah, yeah.

Michael: But their rationales are just so transparent and ham fisted, and they're just not good at even putting up a facade of legality and impartiality on this. And it's easy to be like, maybe reminisce about the old days when the conservatives were so sharp, and then you read an opinion like this and you're like, no, they were fucking dumb back then.

Rhiannon: [laughs] This is idiotic.

Michael: Real fucking dumb.

Peter: Real fucking dumb.

Michael: Yeah. Yeah, this is results driven, and because it's results driven, it is ridiculously stupid.

Rhiannon: It's not convincing at all.

Michael: It's not convincing. It's riddled with errors, you know, and it's destroyed by a dissent that obviously does not carry the day or even give them pause as they charge forward.

Peter: I mean, the dissent is literally like, "Hey, you got this thing in the law wrong." And they're like, "Whatever, leave it in. Leave it in."

Rhiannon: Yeah.

Peter: It's interesting. They didn't have, like, a network of conservative law professors to create theories, right? And then, like, almost compete with one another like he's got the best theory to run up to the Supreme Court. And so they're winging it. And it shows. It's embarrassing.

Michael: Yeah.

Peter: There's no sort of marketplace of ideas behind the scenes here. It's just like Sandra Day O'Connor is like, here's my best argument. And it's like, "Oh my God, this ..."

Michael: Yeah. And, like, you know, I think it's important to note also that—so the court has gone to great lengths to make sure that the Constitution is only very weakly applied, if at all, in immigration courts. You should also be aware that immigration courts are not courts the way you think of them.

Rhiannon: Yeah.

Michael: If you're a layperson. They're not even situated within the judicial branch. They are part of the executive branch. They are a function of the president and the body of government that he or she governs.

Peter: Yeah.

Michael: And they're appointed without Senate confirmation. They don't have to have, like, you know, crazy lawyer credentials you would expect for an Article III judge.

Peter: No. A lot of them—and I know this is problematic, but a lot of them are just dumb hicks, and there's no way around it. Every now and then at our live shows, we'll do a bit where we ask people to submit their personal disputes to us and we resolve them. What we're doing is closer to an actual court than what immigration is doing.

Rhiannon: At a 5-4 live show, yeah.

Michael: Our Judge Judy?

Rhiannon: Yeah.

Michael: Our Judge Judy bit. Yeah. So yeah, it's maybe an area where you would want to actually make sure the Constitution applies, right? Because there are already so many fewer protections, so many fewer statutory protections, and there's frankly just a lower quality of, you know, official overseeing it and ensuring fairness or not, you know? And I think taken together, what you see is that the goal is not to ensure fairness, right? The goal is to ensure efficiency in removing people from the country.

Peter: Right. And a lot of immigration judges, like, are, like, ideologically on board with that project.

Rhiannon: That's right. Yeah.

Peter: They don't view their role as, like, "Oh, I'm gonna oversee this as fairly as I possibly can." They view their role as, like, helping the federal government get immigrants out of this country.

Rhiannon: Yeah.

Michael: Right.

Rhiannon: Yeah, that's exactly right. And so, you know, carving out immigration proceedings as this wild west, constitution-free zone, like, it leads to more than just the Fourth Amendment exclusionary rule not applying in deportation proceedings, right? So I talked to two of my friends who are immigration attorneys today. "Hey, off the top of your head, what are, like, the quote-unquote rights that, say, people in criminal proceedings have that are not ensured or just don't apply in immigration proceedings?" And the list just off the top of their head, right? I can go through some things. In immigration proceedings, you do not have a right to an attorney provided by the state. In fact, in 2019, 77 percent of cases in immigration court, the immigrant in those proceedings did not have legal representation. The rules of evidence do not apply in immigration proceedings, okay? Why does that matter? Well, say you are accused. The evidence against you that you are undocumented is hearsay. Well, doesn't matter. Rules of evidence don't apply in immigration proceedings.

Peter: "Your honor, I've been hearing that this guy is undocumented."

Rhiannon: [laughs] "Your honor ..."

Peter: The judge is like, "Hmm, what do you have to say for yourself?"

Rhiannon: You can be ordered deported in absentia, meaning you're not there, even if you're a minor, right? In criminal proceedings, you can't be tried in absentia. They have to have a criminal defendant. You have to be there to hear the accusations against you, and have a right to confront and fight those accusations. In immigration court? No.

Peter: Confrontation clause.

Rhiannon: That's right.

Peter: Relatively important in criminal law.

Rhiannon: Yeah. Yeah, not in immigration. You don't have it. No speedy trial rights. This is a constitutional right that in criminal cases, a criminal defendant has the right to assert their right to a speedy trial. You cannot just be, you know, indefinitely accused of something with a criminal case pending forever and ever. Nope.

Peter: "Your Honor, can we speed this up?" He's like, "No, we have 18 other witnesses that are gonna describe hearsay against you. We're gonna hear all of them for weeks on end."

Rhiannon: [laughs]

Michael: "And some of them aren't available 'til next year. So good luck."

Rhiannon: Right. And to be real, we're talking about people in ICE detention right now who have been there for months or years are looking at many more months and years in ICE detention because they do not have the right to a speedy trial. They do not have due process rights for these proceedings to actually happen for them in a timely fashion.

Peter: To flesh that out a little, Rhi, correct me if I'm wrong, but if you were in jail awaiting trial for a long enough period of time, you could file a motion based on your constitutional right to a speedy trial, basically to say, "Hey, like, do it or don't."

Rhiannon: Yeah, in most places. Yeah, in most places. No Miranda right. No discovery rights, right? Which is to say in the criminal context, you have the right to see what the evidence is against you. Not in immigration court.

Peter: This is—this is the most kangaroo court shit of all time. The judge is just holding up hearsay to him. He's not even showing evidence, he's just looking at it. He's like, "Hmm, I don't like what I'm seeing here. Get out of here."

Rhiannon: And the Miranda stuff. You don't have the right to be informed that you have rights, that you don't have to talk, that you don't have to testify, that you have the right to remain silent. These things do not apply in immigration court.

Peter: I feel like I've heard all of this in isolation, but never just rattled off one after another. It's preposterous.

Rhiannon: There are actually many others that my friends were talking about earlier today, but last one I'll mention is that your release from ICE detention is not guaranteed even after winning some forms of asylum.

Michael: Mm-hmm.

Rhiannon: We are talking about fundamental individual rights here. You have won your case, you have been granted asylum in the United States. Your release from ICE detention is not guaranteed, okay? So we're this wild west, like I said, that has been created, where immigration proceedings and people's very rights in immigration court are so different—which is to say, like, actually treated as a joke, than anywhere else in our laws. You know, I think the takeaway for this episode is to see how the Supreme Court contributed to that system being created.

Michael: Yeah, but at least it'll never be citizens and lawful permanent residents who are subject to this terrible system of lawlessness. So better not do anything about it for 50 years.

Rhiannon: Yeah.

Michael: See what happens.

Peter: And so, you know, I think it might be worth just briefly contemplating what's happening right now in the shadow of this case, because what you're seeing going on right now is that there's essentially a policy and practice at ICE of mass arrests without probable cause. That sort of thing would very likely not be feasible if everyone had a robust Fourth Amendment claim.

Rhiannon: Yeah. Without this case.

Peter: If you could say, "Hey, they didn't have PC for my arrest, so I can't be deported," the modern ICE regime collapses. And you might think, well, that sounds a little too simple. Maybe it is. Maybe there are sort of other avenues they could take or whatever. But this is an outgrowth of a regime that, like, limited rights for immigrants for so long in so many different ways that when an authoritarian came along and said, "I want to use this to just conduct mass arrests and throw people out of this country with as little due process as possible," all the tools were there.

Rhiannon: Yeah, it was ripe.

Peter: All the mechanisms were there.

Rhiannon: It was so ripe. Yeah.

Michael: Mm-hmm.

Rhiannon: Yeah, I keep thinking about, you know, we've mentioned it a couple of times already, these arrests as to these two men, they happen in the late 1970s. This ruling, the Supreme Court case, is handed down in 1984. This is a time—you know, take a step back. They were arrested by INS agents because at the time, we didn't even have ICE. ICE had not been created. DHS, the Department of Homeland Security had not been created. These are institutional creations of the federal government post 9/11, you know, 2002, 2003, 2004 kind of time. And so there is a chance here that the Supreme Court absolutely whiffs on. And look, not by some mistake, right? Like, our whole thesis of the podcast is that they did it on purpose. But you do think about the alternative reality, the alternative 2025 we could be in had the Supreme Court in the late '70s, the early '80s—I mean, shit, all the way back to the founding, right?—taken seriously a different cost-benefit fucking evaluation, which is the cost to actual human beings when people's rights that are defined in the Constitution are violated, you know?

Rhiannon: And you just start to think, like, why the fuck do we have a Constitution? Why do we have laws? Why would INS, even at this time, have policies to deter officers from violating people's constitutional rights? Is this because human beings, like, deserve a certain level of treatment? Is it because we recognize the inherent dignity, agency, autonomy, liberties of every person? Or do we have laws, do we have a constitution, you know, do we have Supreme Court adjudication to just greenlight whatever the fuck, and the Constitution is kind of like this annoying thing that you have to do illogical and incoherent analysis to just, like, blow your nose on it, right? Like, to get it out of the way. You know, you wonder about, like, the purpose of adjudication at all, and how the justices actually view their work.

Rhiannon: And over and over and over again, no matter what you're taught in law school, no matter what anybody says about how the Supreme Court makes their choices, over and over and over again—Michael said it, we've talked about a ton of immigrants immigration cases over the course of American history—every single case, it's proven in practice. Read what they're fucking saying about the Constitution, their own analysis. They do not view these rights as something that are actually inherent to every single person, certainly not the underclass that they are taking part in creating, right? Or something that they view themselves or their role as something to protect against a federal government that, for example, today in 2025 can now just absolutely run rampant. No. In fact, every single one of these decisions gave a Trump administration in 2025 all of the tools that it needed to do what it's doing right now. And so, you know, I wonder, you wonder, like, what is the—what's the Constitution fucking mean to them, you know? And it's pretty sick. It's pretty gross.

Michael: Yeah. Which is just another way of saying that they are really indistinguishable from the little troll men in the Nazi group chat.

Rhiannon: There you go.

Peter: Yeah. Next week, premium episode. We're gonna be talking a bit about a recent federal judge revolt of sorts. A bunch of federal judges going to the press about their distaste for the Supreme Court and the Supreme Court's attempts to do damage control. Follow us on social media @FiveFourPod. Subscribe to our Patreon, Patreon.com/fivefourpod—all spelled out—for access to premium episodes, ad-free episodes, special events, our Slack, all sorts of shit. Fivefourpod.com/merch for merch. For really good merch.

Michael: [laughs]

Rhiannon: Go check out the merch.

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Michael: That's right.

Peter: See you next week.

Michael: Bye, everybody.

Rhiannon: Bye.

Michael: 5-4 is presented by Prologue Projects. This episode was produced by Dustin DeSoto. Leon Neyfakh provides editorial support. Our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at CHIPS.NY, and our theme song is by Spatial Relations. If you're not a Patreon member, you're not hearing every episode. To get exclusive Patreon-only episodes, discounts on merch, access to our Slack community and more, join at Patreon.com/fivefourpod.