In an event titled “Constitutional Crisis: ICE in Minnesota,” a prominent defense attorney and Haverford alumnus told students that U.S. Immigration and Customs Enforcement (ICE)’s actions in Minnesota represent a failure of the legal system that has been exploited by the federal government and exacerbated by the Supreme Court.
It was in Hilles Hall on February 12 that Professor Steve McGovern sat down with Haverford alumnus Peter Goldberger ‘71 to discuss ICE from a legal perspective. Mr. Goldberger’s over 35-year career of expertise in federal criminal law includes multiple cases before the Supreme Court, and recent service as president of the American Civil Liberties Union of Pennsylvania.
The discussion began with principles of constitutional law that serve as context from which to approach the situation. Mr. Goldberger stated that it is “certainly false” that noncitizens don’t have constitutional rights, highlighting that the 5th and 14th amendments refer to “persons” rather than citizens. He also said that the federal government always faces implicit limitations because it “has no power” unless specifically authorized by a congressionally passed law—not an executive order—within the bounds of the Constitution. On whether ICE violates these limits of statutory authority, Goldberger said that he believes that they often use unlawful excessive force, but that when generalized, it is easier for ICE to claim that they are acting within their charge to “enforce immigration law.”
Despite these innate limitations and that the constitutional protections of due process of law and the right to petition for a writ of habeas corpus—a judicial order forcing law enforcement authorities to justify a prisoner’s continued confinement—apply to noncitizens, ICE has operated in ways that many consider violate these protections. This is reflected in the large number of court cases which ICE has lost: Mr. Goldberger told the Bi-College News that there have been over 1,500 successful habeas corpus petitions against ICE in federal district courts. Mr. Goldberger described this method of operation as a “might makes right” attitude within the administration.
One explanation for the seeming failure of these successful petitions to stop ICE from violating constitutional rights lies in the petitions’ presence in district courts—the federal system’s trial courts. As Mr. Goldberger explained: “When judges at the district court level make a decision it applies only to the parties in the case, or only to the plaintiff in the case… and even [then, if the government loses in one case, they are not bound] in other cases but only in their relations to the person who sued them in this case.” This means that a federal district judge can free a single illegally detained individual, but not many at once.
In some cases, similar cases can be consolidated into class action lawsuits—civil lawsuits representing a group of similarly situated people—or district judges can issue injunctions, which direct a party to cease an action. However, the Supreme Court has limited these actions when related to immigration custody. In a statement to the Bi-College News, Mr. Goldberger explained that “the Supreme Court ruled [in J.G.G. v. Trump] that habeas corpus petitions must be brought in the district where the person is confined. So only those with the identical issue and confined in the same location can sue together as a class.” This is notable, as ICE uses hundreds of detention facilities spread across the country. On injunctions, he said: “The Supreme Court said [in Trump v. CASA] that the courts cannot issue nationwide injunctions.” Instead, they can “adjudicate the rights of those confined within a given district. This gives the government an incentive to move detainees as soon as possible (before they can contact a lawyer) to the most judicially conservative parts of the country.” During the event, he said “the Supreme Court created this crisis by requiring hundreds of individual cases to be filed under identical circumstances.”
Due to this singular applicability, the federal court system has been limited by scope. Talking about the successful habeas corpus petitions, Mr. Goldberger said that the 1,500 petitions come “out of tens of thousands” of similar instances. The federal courts have struggled to handle the magnitude that Mr. Goldberger describes. “There aren’t tens of thousands of slots [in the courts].” Also, it is difficult for detained people to find an available public interest lawyer among the huge demand: “every one of them would have to find a lawyer to do that for them [file a petition for the court] or a literate fellow detainee who could write an unlawyered petition, which can be done but is very difficult.”
Yet, while federal district courts are overwhelmed and limited in impact, the federal courts of appeals—whose circuits comprise multiple states and whose decisions bind lower courts—have a greater ability to stop unlawful action. However, Mr. Goldberger asserted that their impact has been limited by ICE’s legal strategy: “The government exploits this situation by not appealing because it would be the appeal that would result in a decision that sets a precedent.”
In response to a question about what can be done to hold specific agents responsible for actions such as the shooting of Alex Pretti, Mr. Goldberger described the complications involved in suing a federal officer. For a civil lawsuit: “If you try to sue them by name the government is substituted as the defendant.” This “removal” of a case, as it is technically termed, goes through as long as the action is determined to be within the scope of their job as a federal officer. For a criminal case, however, if a local district attorney charged an ICE agent with murder, Mr. Goldberger said “what would happen is the United States Attorneys’ office would file a motion to transfer the case to federal court, and the federal judge would decide whether the person was carrying out their federal duties at the time of the action which was alleged to be criminal. If so, that trial would take place in federal court. The federal district of Minnesota is the whole state of Minnesota, so the jury would be selected from the whole state of Minnesota… you would have not an urban jury pool but a largely rural jury pool.” This could impact the decision as rural residents typically are more likely to be conservative.
To protest ICE, Mr. Goldberger recommended turning to political action, rather than legal. “The first thing that can be done is popular resistance. The government does respond [to popular resistance], not right away, but it does respond. The demonstrations in Minneapolis have been tremendously effective in controlling things from getting worse.” He also suggested that demonstrations may have played a role in ICE’s decision to withdraw from Minneapolis, which “border czar” Tom Homan announced on the day of the discussion. Those who take issue with ICE’s actions may find hope in public protest.
1 comment
Good job, Peter.