Trump’s Legal Assault on the Rule of Law with Constitutional Scholar Eric Berger

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As Donald Trump ramps up executive actions targeting law firms, student protestors, and immigrant communities, constitutional experts are sounding the alarm. Are we witnessing a slow erosion of the rule of law—or a full-blown constitutional crisis? In this episode of Faithful Politics, political host Will Wright and faithful host Pastor Josh Burtram sit down with Professor Eric Berger, a constitutional law scholar at the University of Nebraska College of Law, to unpack the legal and constitutional stakes of Trump’s latest moves.

Berger, who signed on to an amicus brief alongside hundreds of law professors opposing Trump’s executive orders against disfavored law firms, explains how these actions violate First Amendment protections and threaten access to the courts. The conversation dives into the deportation of Kilmar Abrego Garcia, the legal rights of non-citizens under due process, and the broader implications of ignoring judicial orders. Berger also addresses the deportation of graduate students for political speech and how these developments echo authoritarian strategies seen around the world.

BRIEF OF AMICI CURIAE 676 LAW PROFESSORS IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND FOR DECLARATORY AND PERMANENT INJUNCTIVE RELIEF

Guest Bio:

Eric Berger is a professor of constitutional law at the University of Nebraska College of Law, specializing in the U.S. Supreme Court, executive power, and judicial interpretation. His scholarship focuses on constitutional structure and procedural fairness, and his work has appeared in leading law reviews and media outlets. Berger has also contributed to The Great Courses series, making complex legal issues access

Transcript

0:17

Hey, welcome back, Faithful Politics listeners and watchers. If you are watching us on YouTube, I am your political host, Will Wright, and I'm joined by your faithful host, Pastor Josh Bertram. How's it going, Josh? Doing well, thanks Will. And returning back with us today is Professor Eric Berger. He's a constitutional law professor, scholar at the University of Nebraska College and Law. He has been on this show a lot with a different background every single time we got him on. So we were just so happy to have him back. And we brought him on especially just to talk about the constitutional crisis that we currently are in. Not really sure. I'm sure Eric will help us figure that out. So yeah, welcome back to the show, Eric. Thanks again for having me back. It's always a pleasure to talk with you both. Yeah, so we have you back on, but you wanted to give a resounding endorsement of something before we get going. So I'm going to give you the opportunity to do that now. right. Thank you. Yeah. So uh my good friend and I know somebody who's also been on Faithful Politics several times before, Professor Corina Lane at University of Richmond Law School. Just this week, she released her new book, Secrets of the Killing State, which is an in-depth look at lethal injection in the United States. It's a fabulous book. I think anyone who's interested in the law, criminal law, the death penalty lethal injection. ought to read it. It's also a really, really fun read. It's super quick. She's a great snappy, fun style. uh It's hard to believe that a law professor could write a page turner, but she did. ah So I highly recommend Professor Lane's book. I know that's not what you called me on to say, but she's a great person and this is a wonderful book. So I just wanted to give a shout out to her. Yeah, she really, I was talking to her, I forgot when, but ah she was mentioning something and I'm going to screw this up, but there's like some sort of like professional law journal or something. I'm not sure if that's the one that you were writing for, but like she had been trying to get published in it ah and had been unsuccessful and like the book review that you wrote for that publication. Well, Professor Lane has been extremely successful at placing her articles in great reviews, but I think she's referring to, so I did write a review of her book and it'll be coming out in the Michigan Law Review. I think it's not until next year actually it comes out. The production process takes a while, but yeah, I was excited to the opportunity to write more about her great book. So I know you all did or are doing a session with her as well. Yeah, yeah, yeah, we did. Yeah, we love Karina. Hi Karina, if you're watching. Make sure you go out and buy your book. yeah, so speaking of the killing state, let's talk about the Constitution. Is the Constitution slowly dying in front of our eyes, Eric? um I don't know if I know how to answer that exact question. I think the Constitution is certainly in peril. I certainly think the law is in peril, you know, whether it's dying or whether it's, you some people have been throwing out the phrase constitutional crisis. I tend to think of these on a spectrum rather than an on-off switch. So um I think we're certainly further along the spectrum. the crisis spectrum or the dying spectrum than I would like. think there have been several serious assaults on the Constitution and the rule of law in recent months. And I know we're going to dig into some of those. know, again, I don't know whether crisis is the right word, but it certainly should be a deep concern to, I think, all Americans. Yeah. And the reason that you were on my radar was because I saw an article recently about, I don't know how many hundreds of law professors signed on to this thing. And as I do, sometimes when I see things, I'm like, Oh, are there anybody in there that we've talked to? And like, and your name was on it. like, could you, could you maybe just talk a little bit about what that was um and why you decided to sign on to it? I think, I'm not positive what you're referring to, but I think it was probably an amicus brief that I signed on to that was on behalf of law firms whom President Trump has been targeting. So to give you a little bit more background here, know, President Trump, as you probably know, has issued several executive orders targeting specific law firms. You know, in some cases, these were firms who employ or used to employ lawyers Trump doesn't like. In other cases, it was firms that represented clients or causes President Trump doesn't like. In all cases, the president was really punishing these firms. He purported to revoke their security clearances, the security clearances of lawyers who worked at those firms. He said lawyers who worked at those firms couldn't enter governmental buildings and so on. And that makes it really difficult or impossible for those firms to represent their clients zealously. So from the firm's perspective, they had real reason to worry that their clients would fear that those firms wouldn't be able to do their work. So then they would take their business elsewhere. And a lot of those were very lucrative clients. That would be a huge financial blow to the firms. uh Now, as you probably know, some of the firms have caved and agreed to enter into a deal with President Trump, but some of the firms are fighting back. And along with many other law professors, think I haven't, I don't remember the most recent count, but I think it's over 600 law professors we've signed onto amicus briefs, supporting those firms that have been fighting back, including Perkins Cooey, Wilmer Hale. My former firm, Jenner and Block, where I used to work in Washington, DC, those are among the firms that are fighting back. uh And the basic argument we were making, and I think it's pretty much a slam dunk argument, is that these executive orders violate the First Amendment in all kinds of ways. They discriminate on the basis of viewpoint targeting firms that represent clients President Trump doesn't like. They interfere with the access to courts and the First Amendment right to partition the government for redress. They violate this doctrine called the unconstitutional conditions doctrine, which holds that there may be things you don't have a right to. Under the law, the government doesn't have to give you benefits. doesn't have to give you uh security clearance. It doesn't have to give you a visa. We'll talk maybe more about the visa issue later in the show. But what it cannot do is condition your receipt of that benefit on you giving up your right to free speech. And essentially, that's what this executive order was doing. It was saying, well, we're going to take away this access that you previously had because we don't like your speech. So, um you know, I expect the firms fighting these executive orders to win. I don't think it's actually remotely a close case. think, you know, we'll talk in some of the other cases that are maybe a little bit more complicated. I think this one is pretty open and shut. um But it could take a long time. In other words, the wheels of justice turn slowly. And I think that's part of why, you know, some law firms opted to cut a deal with the president rather than fight back as they were worried that it would be too much. They could lose clients in the meantime while they were fighting this. But anyway, that was the brief I signed on to and uh taking on what I saw as this pretty egregious attack on lawyers. mean, as a law professor, I'm teaching my students to represent their clients zealously. And if the lawyers are afraid of taking cases or doing their work zealously because the president might make it hard for them to do their job, that's gonna make it harder for people to ah get a lawyer to represent them. And I think since very early in our nation's history, if you think the government has violated your rights, you can challenge that in court. Think about, and I've been on the show before, think about how many lawsuits were filed. challenging the policies of the Biden administration, the Obama administration, the Bush administration. Now, some of those won, some of those lost, but the point is in the United States, if you think the government has broken the law and wronged you, you get your day in court and these executive orders threaten that access to court. And I think are part of an undermining of the rule of law. So there's two kind of questions. One is probably pretty easy, is there precedent for what he is doing in the past and how's that turned out? But what I'm really piggybacking on that, when a president, when the court orders a president to do something, they're supposed to do it. I mean, know they can file injunctions, they can appeal. They can use their own justice department or um Secretary of State or whatever it is, not Secretary of State, but the Attorney General is what I meant, and fight against it um or something along those lines. But eventually they're supposed to give in. They're supposed to listen, acquiesce, because this is about the separation of powers. I think this has to do with the constitutional crisis you were mentioning, which I think is a good segue into like... the big things in our show, like, what is the precedent for this and how might the Trump administration ignoring that these are found unconstitutional or things like that? How might that lead to a constitutional crisis? Yeah, so I mean, there have been earlier instances in this country of public figures of public officials going after lawyers. I'm not aware of any instances of the president of the United States targeting lawyers in quite this way. em I mean, we're probably all aware, like during the Red Scare era when Senator Joe McCarthy was trying to increase his political profile by labeling all kinds of people communists and trying to ruin and blacklist people. There were some lawyers who represented unpopular clients who were labeled un-American or even subpoenaed by Congress or blacklisted. Certainly African-American lawyers during the Civil Rights Movement, lawyers like Thurgood Marshall and Constance Baker Motley, were threatened with violence or even disbarment m during their efforts m to try to attain civil rights for African-Americans. But I don't To my knowledge, I don't believe the president of United States has ever used executive orders quite in this way to go after lawyers who he thinks oppose them. Now it's possible there are episodes I'm not aware of, but I am not aware of anything like that. And obviously in authoritarian countries, the dictatorship attacks lawyers to solidify its control and prevent attacks on its authority. um I think it was in Henry, Henry VI, maybe Henry IV. One of the Henry plays by Shakespeare, one of the characters said, you know, the first thing we do is kill all the lawyers. Now that's sometimes cited as a joke about, lawyers are sleazy. But I think the real point is that lawyers are a bulwark against oppression and tyranny. If you want to become a tyrant, one thing you ought to do is get rid of the lawyers because the lawyers are going to try to force you to follow the law. Now, of course, I'm a law professor, so I'm inclined to think that. um So biased, Eric. what Shakespeare was getting at. Yeah, you know, it's like everybody hates a lawyer until they need one. So, yeah. Real quick, well, sorry. So the constitutional crisis part, Eric, what does that look like when... How is it a constitutional crisis? I guess for people that are wondering, I don't know, is there really a big deal? What is the constitutional crisis that... What is that actually even referring to? And what would that look like? I'm a little reluctant. I don't terribly like that phrase. So I guess I'm going to resist that question a little bit because I tend to think of it as a spectrum. think we're certainly along the path to a constitutional crisis. But I think the point, the people who make that argument, I think what they're getting at is increased attacks on the rule of law by this administration and We might get to some of these other issues later in the show, but this would include deporting immigrants without any due process at all, without giving them any legal procedures. It would include revoking the visas of graduate students who are in this country legally on valid student visas because you don't like their speech. It would include what we just talked about, targeting lawyers who represent clients you don't like. And it would include then not following or resisting as much as possible following court orders ruling against you. uh And I think the Trump administration has done all four of those things. uh And uh when the administration is violating kind of fundamental constitutional rights due process in the First Amendment and access to courts, And then when it is doing everything it can to disregard or ignore judicial rulings against it, uh I think that's what people are referring to when they say constitutional crisis. Again, that's not a phrase I like to use because I think it might obfuscate more than it makes clear, but I think that's what it's getting at. Yeah. So I'm going to talk about a Briego Garcia and maybe any sort of related types of deportation cases. And it's so wild. This O'Briego Garcia, the person from Maryland, this is a minority. He was deported to El Salvador under allegedly being a part of MS-13. I uh saw today Tom Homan, the sort of immigration czar. He was saying how this person has had due process, was seen in front of two judges, and both judges basically said that he needs to get out. In essence, Garcia is like the face of due process at this moment, as I see it anyways. uh like, you know, every both political sides are kind of arguing arguing their own best case for why he should either come back or stay where he is. But I love for you just to kind of maybe one fill in some of the blanks on what I missed about the Garcia uh case, if you're familiar, or at least the parts that will be relevant to my second question of like, like what legal aspects of what happened at Garcia? you know, should we really be focused on ah and did he get due process? So, I mean, as you referred to, um Kilmar, Albrego Garcia was one of many, I think over 250 non-citizens who were swept up by the government and deported without any due process to a prison in El Salvador where they are being held in conditions that are, at least if you were to believe the reporting, you know, quite quite miserable and abusive. um In the case, well, so I mean, I guess just to back up and talk briefly about what due process is, which I think was sort of implicit in your question. So due process is making the government go to court and obey the rule of law before it punishes somebody. And in a way you could think of that as the difference between um a system that like what most of us think our system is like in an autocratic government, like for instance, the old Soviet Union where you could be punished just because the leadership doesn't like you. One important point is due process under the constitution applies to all persons, not just citizens. Both the fifth and 14th Amendment due process clause refer to the word persons. So non-citizens get due process too. So. In the context of the deportations and detentions to El Salvador, I think there's sort of two components to why due process is necessary. um And the first is very straightforward. It's do we have the right guy? Do we have the right person? And you brought up the Garcia case, and I think that helps show why this isn't just a hypothetical question, because in the Garcia case, the administration admitted it had made an administrative error. He should not have been deported to El Salvador. um um These kinds of errors are actually not that unusual, especially when the government targets lots of people at once. In fact, my understanding is that many, maybe even most of the men who have been sent to this prison in El Salvador, contest the Trump administration's contention that they're members of these gangs that the administration says um it's targeting, Tren de Aragua. um Now, I don't know how many of them are actually gang members. But that's because they haven't been given uh due process. uh So just to analogize briefly to another period in American history, uh we know that we detained several innocent people at Guantanamo for years in the years after September 11th, some of whom were innocent uh and they might've been there because they had the misfortune of having the same name or a similar name to somebody who was actually a terrorist. uh Those are errors that happen because we don't give the person due process. We just round them up and send them to Guantanamo, or more recently, we send them to El Salvador without giving them a court proceeding to give them the chance to prove who they are, to give them the chance to prove that they're not who the government thinks they are, or they're innocent of what they're being charged with. So due process is important to make sure you're not punishing an innocent person. the lack of due process is the reason why the government sent somebody like Mr. Garcia to El Salvador, later said, oops, we made a mistake, but then said, well, it's too late, we can't bring him back. um If I could elaborate on that just a little bit, this maybe gets a little more complicated. So one reason due process is important is you wanna make sure you get the right guy. You wanna make sure you're not punishing an innocent person. Another reason it's important, especially in this context, is due process gets you in front of a court so the court can decide whether the government has the legal authority to do what it's doing more generally. know, President Trump has purported to be invoking his authority under the Enemy Aliens Act of 1798. That statute authorizes the president during a declared war or invasion. to remove any alien who's dangerous to the safety of the United States. uh But it's not clear that, in fact, it's very far from clear that it's satisfied in this case. uh There's no declared war. The Trump administration has been arguing, well, this is a predatory invasion of these gang members from Venezuela. uh I think that argument is actually pretty unlikely to succeed these men. Most of them, at least to my knowledge, did not come to this country as a conquering force. I think most of them were fleeing violence and deteriorating economic conditions in their home country, Venezuela. Now, that's not to say they're in this country legally, but we sent them to a prison in El Salvador uh without seeing if the government had the legal authority to do that. Now, is it impossible that a judge could say they're an invading force and therefore satisfies the statute? I guess it's not impossible. But in my view, I think that's quite a stretch, and I think most courts are not likely uh to buy it, uh in part because the Enemy Aliens Act has only been invoked very infrequently during our history and only in times of actual war. uh So in other words, I think not only did the government make a decision mistake in Mr. Garcia's case and they sent somebody to El Salvador who they should not have sent. But they probably have overstepped in invoking the Alien Enemies Act in the first place to deport these men. But getting back to the original question, because they didn't receive due process, no court had the opportunity to rule on that question. And I don't think that's by accident. It seems clear. that the administration moved quickly to deport these men before courts could weigh in on these important issues. So in other words, think the lack of due process was very deliberate, uh perhaps in part because the administration realized it was on shaky uh legal grounds. Now, I guess one final point that it's not sort of directly answering your question, but I think it is important. It's relevant and important for your listeners to understand. I mean, I think it's obvious that the Trump administration violated these men's due process. The Supreme Court said that unanimously, which I think is a big deal. Today's Supreme Court, as we've talked about before when I've been on your show, often does not speak unanimously. uh So it's clear that the administration violated due process. uh What's a lot less clear is what courts can do about it now that the violation has already occurred and these men are in El Salvador. And courts remedial power can actually often be quite limited, especially in a case like this where it involves a foreign country and courts are very reluctant to step on the toes of the executive branch and issue orders that relate to executive power, especially with regards to foreign affairs. uh One of the classes I teach here at the law school is a class called federal courts. And one of the themes of that class is that often courts power to make you whole uh after your rights have been violated by the government, it's actually a lot less than many of us would like to think. And that can be a bitter pill for students to swallow who think that courts are there to do justice. um We can get into that more if you like. But I point that out just because in my view, and I think probably in the view of significant, maybe the vast majority of legal scholars, certainly a significant majority of legal scholars. It's 100 % clear that the Trump administration violated the Constitution by removing these men without due process. I don't think there's any question about that. It's far less clear what, if anything, can do to rectify that abuse. Yeah, you know, I'm I've been following this case as closely as I can. Anyways, I anybody that's interested in I would I would highly suggest follow a law fair. They got a great team of reporters, Roger Parloff and a Bauer. They sit in the courtroom and they are just tweeting basically everything that that that is happening. And I don't know when this happened. I think it was last week. uh One of the hearings, the the DOJ's counsel. His last name was Ensign. can't remember what his first name was. anyways, like, yeah, so like the the lawfare reporters were in the courtroom typing stuff. And it's just like I could it was almost like palpable, the frustration that at least I was feeling from at least, you know, they're they're they're pretty like objective, just updates about what's happening. And they're just like, the judge asked him again, you know, judge sounded very stern this time or whatever the case may be. And I'm like, like Given that you've been in a courthouse before and know judges, how does a judge navigate something like that? Or is there anything in their training that helps them navigate these very difficult conversations with the White House who has drones and stuff? I mean, I think it's difficult for judges uh because on the one hand, it's pretty clear. In fact, it's very clear here that the Trump administration is doing everything it can to avoid complying with judicial orders. It's reading orders extremely narrowly. It's being pretty disingenuous with the facts. And you can see in a lot of courts, reactions that they're very frustrated that the administration is deliberately trying to thwart judicial orders. On the other hand, as I mentioned a moment ago, judicial power is limited. And courts, know, Alexander Hamilton famously said, courts don't have the power of the purse or the power of the sword. You know, they don't have any money at their disposal and they don't have a police force to enforce their judgments. They only have judgment. you know, for most of our nation's history, the political branches have usually complied with judicial orders. But when they don't, it can be hard for courts to force them to do that. You know, and as I mentioned before, even in ordinary times where you don't have an executive branch that is as contemptuous of the judiciary as I think the Trump administration is, there are serious limits on courts remedial authority. ah Certainly that's the case uh involving foreign affairs and foreign countries. uh So it does put judges in a very difficult situation. So what exactly has to be done in due process? I know that it has to be proven that we have the right person to go before a judge, but what needs to be done in order to prove it? What process is actually due to someone when there... Is there a certain amount of work that has to be done? Is there a certain amount of evidence that has to be shown? I how does that actually work when we're saying someone didn't get due process? I understand the bigger terms, they didn't get to sit before a judge. They didn't get to prove the person that they are who they say they are or who the government says they are rather and did what the government said they did. But let's even dig deeper on what are the details of that. due process, what has to be actually done. a great question. the answer, I mean, there's not an easy answer because it does depend on the circumstance. I mean, it's clear here that due process was denied because these men who were sent to um prison in El Salvador didn't get any process. They got no day in court. They got no legal proceedings. They had no opportunity to say, hey, you got the wrong guy. I'm not a gang member. not who you know, I just have the same name as somebody. I'm not who you think I am. They got no opportunity to challenge the legality of the government, the executive branch's authority to do this in the first place. So it's clear that if you get no process, that's a violation of due process. But as your question implies, it's correct that it's not clear, certainly under the Constitution, exactly how much procedure a person gets. So I'll analogize again to the Guantanamo situation. Actually, this wasn't a Guantanamo case, but this was another post-9-11 case. There was a case called Hamdi involving an American citizen who was picked up on the battlefield in Afghanistan, who appeared to be fighting uh with the Taliban and or al-Qaeda against American forces. uh The United States detained him on a naval brig off the south coast of South Carolina or something like off the southeast coast. And the government's position was, well, we can just hold him. forever. ah We say he's an enemy combatant, or we can at least hold him as long as the hostilities continue. And the Supreme Court slapped down the Bush administration in that case, and it said that that was a denial of due process. However, it also said um that doesn't necessarily mean that he's entitled to the same procedures that an ordinary criminal suspect would get in a regular court. um you know, he's been deemed an enemy combatant. This is during a war on terror. He might not get all the same procedures, but what the government had argued was he doesn't get anything at all. And the Supreme Court made clear that nothing clearly violates due process. uh So, you know, what you might've thought would happen is, then the government would go back and try to design a process and would get to see through subsequent litigation whether that... complied with due process, but in the end, they ended up cutting a deal with Mr. Hamdi and um I think, and sent him to Saudi Arabia. And he agreed to give up his US citizenship. So, I mean, just to flesh that out a little bit more in the context of these cases, Josh, you know, it is true that there are a lot of people who are concerned um about how many undocumented immigrants are in this country. And obviously that's a main driver. of the Trump administration policies. And to a large extent, that has some uh political backing. It's fairly politically popular. And it's true, the government has the power to remove people who are in this court illegally. But there's a process for removing those people legally. The government can initiate deportation proceedings and move through immigration court to deport them. uh But of course, that's not what the administration did here. Now, President Trump, uh I think it was actually just yesterday said, undocumented immigrants shouldn't get trials before deportations because it just takes too long. um So he's saying we should ignore due process because due process takes too long. um On the other side of the coin, there are immigrant rights advocates who would say, that immigration courts are flawed in the other way, which is because they offer fewer procedural protections than regular federal courts do. So that if you're an individual at risk of deportation, an immigration court is actually not your ideal form either because it doesn't offer enough procedure. uh So I think most people agree it's an imperfect system, though they disagree on the reasoning. Again, the Trump administration thinks it's too much procedure. A lot of immigrants, rights advocates think it's not enough procedure. It's vastly preferable from a law perspective, it's vastly preferable to not having any procedures at all. um And I guess I'll also point out if we want to improve the immigration system, the mechanism for doing that is going to Congress to revise our immigration laws. Congress has been pretty silent in this space for a long time, but... um The way to do it is not for the administration just to say, I don't like having to go through all these procedures, so I'm just going to deport a lot of people um without going through the process at all. um And I'll add, in this case, it's even worse because it's not even just deportation. It's sending somebody to a prison in a foreign country um at the behest of the United States, which it's come out as paying the El Salvadoran government to do that. So, um you know, it's not just a matter of deportation, it's also a matter of incarcerating these people. And obviously, due process is required for that as well. So again, exactly how much process, how many legal procedures, I think depends on the situation, it depends on the context, but it's clear that no legal procedures violates due process. Yeah, you know, I saw that truth or whatever you want to call it, that he posted about that. And I feel, I don't know, I feel like an obligation to mention that, you know, we could have cut down the amount of time to process these claims if they had passed that Republican Senator Langford's bill, which actually provided for more judges. So you wouldn't really have this problem. for our listeners that weren't tracking it, Trump had encouraged his members to basically not vote for it because it must have been that good of a bill that it would have scored Biden some political points, which is the way that Trump framed it. But I do want to just ask you a question that came up as you're talking, because you said Trump posted something about illegal migrants, immigrants not getting due process. uh due process is part of the Constitution. Does the entire part of the Constitution apply to anybody within our borders? maybe you can kind of help put that in perspective, because I think that that's a piece that folks, including myself, uh don't know. due process clause does, and so does the equal protection clause. I mean, they say that all persons in the United States are entitled to those rights. And some other rights, like the right to free speech, as well. Obviously, not everybody in our borders has equal rights. Non-citizens obviously do not have the right to vote. uh um There's other constitutional provisions, the privileges or immunities clause of the 14th Amendment, for instance, is limited only to citizens. uh So, you know, which rights are all people are entitled to if they're in the United States and which rights are reserved for only US citizens is sort of complicated and dependent on a sort of right by right basis. But the right to due process and the right to free speech, think you'd want to talk also about the tax and free speech of the graduate students. Those are rights that attach for citizens and non-citizens alike. Yeah, yeah, because I want to switch that up because there are these college students that are being deported or withheld or uh for, it seems like, protected speech. like how is it that the First Amendment and like, or in what ways does the First Amendment and like immigration laws intersect, especially in the context of like these types of students? Yeah, no, I mean, that's great question. As I just said, courts have made clear the First Amendment protects citizens and non-citizens alike, their freedom of speech. uh So to the extent it appears that the administration is trying to deport students who are in this country legally on valid student visas, and that it's targeting particular students because of their speech, that seems to violate First Amendment freedom of speech. uh There've been a lot of cases about this. Maybe the most prominent one is that of Rumeysa Ozturk, Turkish graduate student at Tufts. Some of you might've seen the video. There's a pretty chilling video of this woman on a city street in, I think, Somerville near Boston, Massachusetts, talking on the phone on her way to dinner and gets surrounded by masked ICE agents who uh basically... you know, put her in an unmarked car and she ended up at a detention facility in Louisiana. Oz Turk, as far as I know, um I have no criminal record. She was in this country legally and had no ties to terrorism. And my understanding is that that is true of the vast majority of the students whom the administration is trying to deport. So the... most plausible reason, maybe even the only possible reason the government could have had for deporting her, trying to deport her as her speech. She had co-authored an op-ed, I think in a tough student newspaper that was critical of the Israeli government, obviously the government's policy in Gaza. You know, so I think that's a blatant violation of free speech. It's targeting her for her viewpoint and a core First Amendment. Rule is that the government may not go out, you know, may not punish your speech because it doesn't like the viewpoint of your speech. And this relates back to the unconstitutional conditions doctrine that we, I think I mentioned earlier. You know, it's true, nobody has an absolute right to a visa. The government doesn't need to give you a visa if you're not a US citizen. But it can't condition a benefit like a visa on you giving up your right. to free speech. So I think students like Ostert could argue that this doctrine applies. So I think there's a good argument that this violates First Amendment freedom of speech. Now, I think to be fair, it does get a little more complicated. For one, the executive branch does have broad power to decide who gets visas into the country and who doesn't. Again, I don't think that power is so broad. that we can just keep people out of the country because the Secretary of State does not like an op-ed they wrote. I don't think they can do that because of the First Amendment. But the administration is going to argue they have their powers broad so they can do whatever they want. I don't think that argument is going to work, but I can't be 100 % positive that argument is not going to work. The other related complication is a case from the late 1990s called Reno v. American Arab Anti-Discrimination Committee. In that case, the court said that an alien in this country could unlawfully, if you had an alien who's in the country unlawfully, so somebody who's overstayed their visa, for instance, that they um can't assert selective enforcement as a defense against deportation. So in other words, the admin, so they couldn't say, you can't deport me because the administration is targeting me because of my speech. em I think for a couple of reasons that is unlikely to help the administration that much in the cases today. uh One reason is em in that opinion, Justice Scalia did, who wrote that majority opinion, did say there may be cases where the government targeting somebody is so outrageous that the outcome could be different. And I think, you know, in a case like ours where it's blatantly targeted them uh for their position, for instance, on Israel, uh that seems to be a blatant First Amendment violation. So I think that would be different. uh But also, and maybe even more importantly, uh many, probably even most of the students the administration is currently targeting are in this country legally. They're here on valid student visas. And that wasn't the case in the 1999 uh Reno case. In that case, there were immigrants who had numerous visa violations. had overstayed their visa or they had come as a student visa and then weren't students anymore. uh So in this situation where they're targeting mostly, as I understand it, individuals who are on valid student visas, who are still students, have no criminal records. uh It seems like a pretty blatant assault on the First Amendment. I don't know that I'd say it's a slam dunk case, but I do think it's a pretty strong case that the First Amendment has been violated. Once again, I think there's a question of what, if anything, the courts can do to remedy those wrongs, um in part because the administration is trying to push those through an immigration court. um We'll see how receptive they are to the First Amendment arguments. ah I do think that is a First Amendment violation. So, I mean, I just have so many questions about this. And I guess the questions are all kind of like, they're orbiting around this central concern, which is why should citizens be concerned about these violations? And things like sending non-citizens to prisons in El Salvador. that were gang members or allegedly gang members, things like that, which I totally see it being problematic sending people who haven't committed crimes or whatever to uh massive prisons, super prisons in El Salvador. And it seems like that's the case from what I can see with the uh Abrego Gonzalez or Garcia. Abrego Garcia case? Yeah, Abrego... Garcia. So I totally see that. But I guess I'm thinking about what happens, it's like all these things stirring around, what happens when the executive branch doesn't comply? Is it just that they can just say, I'm not going to do it? And there's no consequence to that? And why should we be so concerned with this? Again, I think this is coming at something like inalienable rights or like some kind of sense of if immigrants are treated this way, non-citizens, is it paving the way for citizens to be treated this way? I guess this is the kind of like consideration I'm trying to get at to kind of paint the picture for the lay person who's here. And I'm like, well, I mean, they're in the country illegally. I mean, I wouldn't go to another country illegally and expect to be able to just be there and get the things that the country has to offer. And so those are the kinds of arguments that I hear, thinking about the lay person who just kind of has formed opinion based off media and just looking at this and saying, I don't know, maybe, maybe not. What are we really dealing with here? What are the dangers of what's happening right now? um Yeah, no, those are great questions. know, with regards to your question about, you know, whether the court can actually force them to bring them back, um you know, maybe we'll put that to the side and turn to that in a moment. The short answer is I don't know. um You know, the Supreme Court did uphold a lower court ruling that um the government had to facilitate their return, but it was very careful not to say that the lower court could require the government's return. And that's because it could step on the executive's power to conduct foreign affairs and so on. um So... Hey, Eric, real quick, is that the difference between like facilitate and effectuate, which is sort of the argument I get hearing? no, I think that's right. Yeah, I think you're right. think that is the those are the words that uh yeah, thanks for that correction. Those are the words the um the court used. So, yeah, why don't we put that on hold for a moment and come back to it in a moment. But I just point that out that one of the reasons why the due process issue upfront is such a big deal is especially when the government spirits people out of the country and deposits them in a foreign prison, it's not clear that courts can right that wrong even if they want to. You know, with regards to the main part of your question, Josh, um which I understood to be, well, why should citizens be concerned about this? You know, I think one important thing that we all should keep in mind is that the Trumps The Trump team's legal strategy in a lot of these cases has been very broad. To my knowledge, you're right. They've only targeted non-citizens, at least so far. And it's also right, as I understand it, that at least with regards to the deportations, their political explanation has been about non-citizens. So that's clearly a line they're drawn. On the other hand, Their legal theory is so broad that it appears they think they could do that to citizens as well. And that gets back to the point that I made about due process. It's very clear that citizens and non-citizens alike get due process rights. So if the government can abduct somebody or disappear somebody and deport them to a prison in El Salvador without ever going before a court, um If it can do it to a non-citizen, it's not at all clear that it can't do that to a citizen um as well. um And, you know, I wish I could say that that could not happen to citizens, but I honestly don't know. um I know people, know, knowledgeable people who know a lot about law and politics who are pretty convinced that the Trump administration is going to keep pushing the boundaries and that if they're able to get away with this, then they'll start doing this to citizens who oppose them. I know others who don't think that, other knowledgeable people who think they're going to draw the line at non-citizens. I really don't know, but I do think either theory is plausible. And I also know that I know some people who are afraid of speaking out. I know people, m friends and colleagues who are close to me. who have said effectively that they don't think speaking out is worth the risk. They're appalled by what's going on, but they're terrified at what could happen to them. um And some of them are citizens. um And I think that's a terrifying thought. I hope it's terrifying for all Americans, the idea that we live in a country where you as citizens are too afraid to criticize their government. That's what it feels like to live in an autocratic state. That's a lot more like the old Soviet Union or contemporary China, where if you criticize the state, they can come after you. I think most of us would agree that that's not what the United States historically has been or what it should stand for. Yeah, I've heard the phrase demoralize to demobilize ah as a strategy, like in autocracies to keep people from protesting and stuff like that. ah We don't have too much time left, but I do want to get your definition. You mentioned it a few times in here and I meant to ask you earlier about it. You said the Constitutional... To reach a constitutional crisis, as you see it is, is like on a spectrum. So I'd love for you just to maybe unpack that so that way we can either join you in your understanding. Because I agree somewhat. mean, like for a non-law person like myself, I just think constitutional crisis. And I'm just thinking, OK, well, if X equals one today, then we're a constitutional crisis. And if it goes back, then it's not. So I'd love for you just to maybe unpack, like, at what point in time will we have a firmer confidence level that we are in a constitutional crisis and how do you kind of measure that? Yeah, I mean, I guess um I'll do the typical law professor thing and I might rephrase the terms of the question. Again, I have trouble answering the question about what a constitutional crisis is because I'm not sure exactly what that means. Maybe a way of thinking about it, certainly one of the elements of what I think a lot of people mean when they say we're in a constitutional crisis is are we at the point where the executive branch is just openly defying the courts and doing whatever it wants without any regard to what courts are saying or the rule of law. So that's one way of framing the question. Has Trump violated court orders? I think it's safe to say that the Trump administration has been very contemptuous of courts and it's doing everything it can to avoid complying with court orders. there is some disagreement about whether he's openly defied court orders. um you know, maybe go back to the Garcia case that we were talking about a few minutes ago. um You know, that would be an, that can give you an example of where some of the fight is. So the Supreme Court, I think we talked about, you know, upheld the lower court orders saying the administration had to facilitate Garcia's return. As you pointed out, the court said that to the extent the lower court had said the administration needed to effectuate his return, uh well, the Supreme Court said, well, the lower court had been unclear and it may go beyond the judiciary's authority. I think the US Supreme Court here is trying to walk a fine line by making clear that yes, the government has violated the law by deporting Abrego Garcia to an El Salvadoran prison. and yes, it should take steps to get him back, and yes, notwithstanding court orders that it should take steps to get him back, it hasn't done anything yet. um So those would be all in the column you could check. Those are all checks on the side of yes, the administration is disregarding court orders. You know, as I mentioned before, at the end of the day, I think the Supreme Court also realized that courts certainly don't have the authority to order El Salvador to release them. And they probably don't have the authority to order the president how to conduct foreign affairs with El Salvador. So, you know, the court tried to be sensitive to both those arguments. um Now, I think the reason why a lot of people are still arguing the administration is if not an outright defiance of the courts, at least disregarding the courts or flouting the courts, is, as far as I've seen, the executive branch hasn't done anything to try to bring Garcia back. Instead, it's been trying to parse the word facilitate, and it's made pretty disingenuous arguments saying, that doesn't require us to do anything. And I think another factor is here, we now know that the government is paying. El Salvador to imprison these men. And President Bukele of El Salvador and President Trump were laughing about this basically in the Oval Office a few days ago. So it seems pretty likely to me that if the president told President Bukele of El Salvador that he needs to return to Garcia, Bukele would do it. So it's a little, in fact, it's more than a little disingenuous for the administration to say, we can't full order. another government what to do. I mean, in theory, that's true. In ordinary circumstances, that's true. But it's pretty clear that El Salvador is really a puppet state of the Trump administration right now. So I guess I go into that because I think it is fair to say that the Trump administration in this case and actually in many others is avoiding complying with court orders and is interpreting court orders disingenuously to avoid complying with them. But I suppose reasonable people can disagree about whether um it's actually reached outright defiance. getting back, Will, to your question about um constitutional crisis, I think different people will, that's part of the reason why I resist that label, because I think different people are gonna say, put crisis at different points, whether it has to be outright defiance or if it's just disregard. In all of it, I think it's pretty obvious that the Trump administration is operating in bad faith when it comes to respecting courts. And I think that's also pretty extraordinary and unprecedented in modern American history. And just to be clear, and I think this is important, we've certainly had presidents in the past who have pushed the boundaries of the law and violated the Constitution. That's absolutely true. But I don't think, at least not in contemporary times, at least... maybe ever, I don't think we've ever had a president so defined of courts. um So I think we are in really uncharted territory. And if I could just make one more point, it's also important. I have heard some people, um supporters of the president say, well, these orders are really coming from radical liberal judges, you blue dot judges who have ruled against Trump, they're Biden judges, so we shouldn't take those rulings seriously. You know, they're infringing on executive power. uh I really think that argument is inaccurate and misses the point. um One of the strongest judicial statements against the deportations was in a decision written by Judge Harvey Wilkinson on the Fourth Circuit, the U.S. Court of Appeals for the Fourth Circuit. Wilkinson wrote something like, the government is trying to stash away residents of our country in foreign prisons. without any due process, due process is foundational to our constitutional order. And then he added the sentence, something along the lines, this should be shocking, you know, not just to judges who deal with this stuff all the day, but to all Americans. So Americans have this intuitive sense that, you you get your day in court and if the government's gonna punish you, you should have your day in court. So this should be shocking to all Americans. I point out Judge Wilkinson's language in particular. because he's an extremely prominent conservative judge. He was a Reagan appointee. He was on President George W. Bush's shortlist for the Supreme Court. So that was quite a rebuke from a conservative judge. And remember that all nine Supreme Court justices said that, back to the Abrego Garcia case, that he should have been given due process before he was deported. And as you know, six of the nine Supreme Court justices are Republican appointees. And then just over the weekend, we haven't talked about this yet, but I'm sure you saw seven of the nine Supreme Court justices took the rather extraordinary step of telling the Trump administration, you may not deport anyone from this group of migrants to El Salvador unless we rule again and tell you you can. And, know, El Salvador or was it Venezuela? I can't remember. they were from Venezuela, but the administration wanted to deport them to El Salvador. If I'm correct, maybe I have that wrong. em But the basic point was the seven of the nine justices said, you may not deport unless we come back and say otherwise. um Two of the justices dissented, Justice Alito and Justice Thomas. And Justice Alito wrote an opinion you know, basically saying that the Supreme Court, you know, violated the usual procedures um in that case. And there's not a crazy, you know, there's a non-fairness argument that he's right about the ordinary procedures. But I think what the seven Supreme Court justices who voted that way were thinking was, this is an extraordinary circumstance where we have a president who is so defiant to the rule of law and so contemptuous of courts that He's not going to go to courts. He's not going to allow the ordinary process to play out. He's just going to deport them without telling anybody. And in light of that, we can't follow the ordinary procedures because the Trump administration is just going to skirt around courts uh and find all the loopholes it can. um You know, four of those seven justices m to rule against m the Trump administration in that case. were Republican appointees and all three of President Trump's own appointees voted against the administration here. That was justices Gorsuch, Kavanaugh and Barrett. Now, admittedly, uh is just a temporary ruling. We'll have to see how the merits play out down the line. But the argument that this is just radical liberal judges or Biden judges or blue dot judges ruling. against Trump in these deportation cases. I mean, that's just flat out wrong. And the reason I bring it up, and I think it's relevant to your question, is it's part of what I think is really the Trump administration's propaganda effort to try to delegitimize any judge that rules against them when courts are trying to adhere to the rule of law. Yeah, I really appreciate you bringing up that Reagan judge, I recommend anybody that is interested in this stuff to read it. It's like seven pages or something like that. I swear it's written in language that I can understand. ah So it's not full of a bunch of legalese stuff. And ah it's pretty scathing. Although I'm not necessarily sure if Reagan would still be considered conservative in today's America. ah But at the time. But again, he was on George W. Bush's shortlist for the Supreme Court. I mean, he's a very prominent conservative judge. Yeah, yeah, I last question I've got for you is like um Let's say the Trump administration does I don't know like Ashley just you know flip their nose at the Supreme Court um Like would that act in your opinion be considered like a high crime or misdemeanor I mean, I think, yeah, I think you can certainly make that argument. um I mean, the problem is impeachment is really a political remedy. So, um you you would need, it doesn't matter what I think um constitutes a high crime or misdemeanor, it matters what members of Congress think. um And as your question suggests, you know, the constitution doesn't really provide a whole lot of mechanisms to deal with a rogue president who, repeatedly breaks the law and violates the Constitution and doesn't listen to courts, except for impeachment. um Now, it might not be that hard to impeach the president. You only need a majority of members of the House to impeach. And the House is very closely divided, so you'd only need a few Republicans to vote with the Democrats. And if things got bad enough, I think that might be possible. But to remove an impeached president, you need two thirds senators to agree. And that's extremely difficult. In fact, so difficult it's never happened in American history. And given how hyper-partisan our country is, you I think there's a good argument. It's nearly impossible. You know, I do believe that many Republicans in Congress are gravely concerned about Trump's abuses of power, but they're not saying it out loud. Most of them are not. because they're scared of him. uh So for that reason also, I think impeachment is extremely unlikely. Now, maybe, some people have said, well, maybe if President Trump did something like invoke the Insurrection Act and try to use the military to use military force against US citizens on home soil, it could be that that would be a step too far. And then, know, members of Congress would impeach it and remove him. But I think, again, given how hyperpartisan things are, it would have to be extremely egregious. Although I do think, you know, I do think that there are lots of members of Congress, Republicans, who are appalled and frightened by what's going on. But they're worried about crossing Trump because they know President Trump execs exerts retribution against people who cross them. So, uh you know, I do think it is important for Americans, perhaps especially in uh red districts and red states to talk to their, to call their representatives in Congress and say, you know, this is a line too far. uh We need to enforce the rule of law uh because without it, uh I think members of Congress are not gonna just sort of do it on their own. And I know that sounds, that might sound like a partisan statement. I mean, guys, we've been on, I've been on here many times, you know my priors. I consider myself a moderate progressive. So of course I'm just inclined to, or I'm inclined to disagree with the president on a lot of political issues, but for what it's worth, I think there are issues. important issues that Republicans generally are correct about. I think the deficit is too high. I think there's too many regulations that make it way too difficult to get things done in this country like build ah new housing. I ah think President Trump was probably right in his first administration to be tougher on China. And there are other things as well. So um I don't know if anyone's going to buy that, but I do think that these attacks on the rule of law should concern all Americans and that it's a huge mistake to think of this as just left wing crying and fetching about a president they wish hadn't won. I think these are really unusual times and that this assault on the constitution is unprecedented. And the fact that you have conservative judges like Judge Wilkinson and the conservative justices on the Supreme Court saying the same thing, I hope is evidence to persuade Americans that this is not an ordinary political fight. This is a serious attack on our system of government and our rule of law. It just feels like there's such a there's such a huge mess in the Constitution when there was no way like it just didn't feel like it really left us any really any real way to hold a president accountable. I mean, I know impeachment and I know that, but it's like, but even like and I mean, obviously, hindsight's 20 20, but it's like, what we have like there. So it's just like everyone's just like, OK, yeah, it only depends on. I guess everything only depends on people just being willing to do it. But it just like, it depends on people like, yeah, like it's basically tradition that you have to follow what the US Supreme Court says. I mean, I know it's in the constitution, but if there's no enforcement ability to it, it just feels like it's a lot of bark with no bite. Yeah, I think that's exactly right. And other people have made that critique as well, that it's just too difficult to remove a lawless rogue president. You know, I guess the counterargument to that, you because I'm a law professor, the counterargument would be, you don't want to make it too easy because then impeachment becomes a political tool. And, you know, they could have been impeached, you know, President Biden, who, you know, might not have been the best president. But, um you know, you know, whatever laws he may have broken, wasn't nearly this kind of systematic assault on the rule of law that we're seeing today. So, you know, that, I guess that would be the counter argument. But I think you're right. Our system makes it very, very hard to remove a president, a would-be tyrant, a president who's become, who wants to become an autocrat or a tyrant. And Again, I don't think impeachment is entirely impossible, but I think it's extremely unlikely. And assuming that doesn't happen, I guess the best hope is that we kind of muddle through and maybe if the Democrats take back the House in the midterms, they can slow some of this stuff down. I don't think there's any guarantee that they'd be able to. And notice also, and I think this is also a really important point, let's say these abuses are mostly left unchecked. But let's say that at least the political system holds. um Hopefully it will. We haven't talked about that. Hopefully it will. So let's say a Democrat wins the presidency in 2028. I think we still would have a dangerous precedent of a president who has seized far more power than the constitution permits and gotten away with it. And when I look at the current field of Democrats, like, no, I don't think any of those Democrats have. autocratic aspirations the way that I think President Trump does. But you could certainly easily imagine a world in which a Democratic president abuses power in pursuit of their own policy agenda and say, Trump did this, Trump did even worse. Now we're in power, now it's our turn. And I think that scenario is entirely plausible. Now, my guess is their assault on the rule of law wouldn't be quite as extreme as what we're seeing now. But you could certainly imagine abuses, maybe worse abuses than we've seen in the past. And their excuse would be, well, Trump did it, no one stopped him. So oh it would be wrong to stop us. So then we'd have an ever worsening spiral of abuses of power. In terms of reform, maybe we could get some kind of bipartisan consensus. that President Trump has abused the Constitution and imagined some kind of effort, bipartisan effort to put new safeguards in place. There is a uh history for that. mean, that happened in the 1970s in this country after Watergate. So it is possible. You know, on the other hand, you know, I guess a couple of points. One is in the 1970s, after the Supreme Court forced Nixon to release the tapes that were really the smoking gun that showed he had obstructed justice and, you know, called the F- tried to order the FBI to stop the investigation. At that point, it was clear that Nixon was a crook and the Republicans all abandoned him. And if Nixon hadn't resigned, um it's pretty clear Congress would have impeached him and I think the Senate would have removed him. That's far less likely to happen today in part because of our Balkanized media and the echo chambers um and just because of how hyper-partisan it is. um You know, we did later in the 1970s get a very reform minded president. President Carter focused on limiting power of the White House. And that was in part a reaction against uh Nixon's abuses of power. So you could, I could imagine that kind of thing happen again. But on the one hand, President Carter was a pretty unique individual. And it takes, it's the, I think the rare politician who, you know, works for the presidency to limit the presidency's power. And then on top of that, he was widely perceived in part because of that, probably he's widely perceived as a weak president who was a one term president who lost reelection. So I could imagine even, know, were a future president to have those inclinations, he would be here, she would be worried that it wouldn't work out well politically. you know, I hope we're able to, you know, assuming impeachment doesn't work, which I think is unlikely, I hope we're able to embrace bipartisan reforms. But I think it's sort of way too early to say how likely that is. I think the bottom line is Americans need to reach out to their members of Congress and make clear that this shouldn't be a partisan issue and that we all need to stand up for the rule of law. Well, Eric, I appreciate so much your time and your insight on these matters. uh It's always great to talk with you. And so it's very enlightening to hear your perspective and important this conversation. So thanks for coming in and having it with us. Well, thanks very much for having me. Sorry for rambling as usual, but I appreciate the opportunity and it's always great to see you guys. Yeah, you too. And no rambling. It's really good stuff. I always leave so much more equipped in terms of these issues than when I started. I really do appreciate that. And I will put links to your staff page and stuff like that in the show notes if people want to check out some of your work. that's going on. of course, you have stuff in the great courses. I always tell people to go and check out your work there. It's great. And guys, this has been Professor Eric Berger. Make sure that you check out the show notes for all that stuff. And also we have, just wanted to let you guys know, we have something on May 2nd coming up. It's in Beyond the Echo Chamber with Karina Lane, who we talked about at the beginning of this show about the secrets of the death The secrets of the killing state. And so make sure you guys go sign up. You can get the link to that on our website or on the Facebook page. And so go check that out. And guys, thanks for joining us. Make sure you like, subscribe, do all the stuff that hacks the algorithm. We want to get this stuff out to people who need to hear it and share this with someone who feel like would be enlightened by this, use it as a conversation starter. And until next time, guys, keep your conversations that right or left. But thanks. Have a good one.