Aaron Reichlin-Melnick, a senior fellow at the American Immigration Council, recaps and responds to the latest legal news on the Trump administration’s ongoing immigration crackdown. We cover judicial decisions that the Trump administration cannot deport alleged Venezuelan gang members without due process, that it broke the law by sending National Guard troops to put down protests in Los Angeles, as well as its attempts to deport hundreds of Guatemalan children currently in the custody of the Office of Refugee Resettlement and deputize military lawyers with no experience in immigration law to serve as immigration judges, and more.
This is a rush transcript. Copy may not be in its final form.
AMY GOODMAN: This is Democracy Now!, democracynow.org. I’m Amy Goodman, with Juan González.
We look now at a slew of legal developments with the Trump administration’s deployment of National Guard troops to U.S. cities and his broader immigration crackdown. On Tuesday, U.S. District Judge Charles Breyer, the brother of the retired Supreme Court Justice Stephen Breyer, ruled Trump broke the law when he deployed the National Guard to L.A. to quell protests against immigration raids. Breyer expressed concern [that] the deployments are, quote, “creating a national police force with the President as its chief,” unquote.
Meanwhile, Defense Secretary Pete Hegseth has authorized up to 600 military lawyers to serve as temporary immigration judges.
And in more immigration news, the 5th U.S. Circuit Court of Appeals issued a two-to-one ruling that blocks President Trump from using the 18th-century wartime Alien Enemies Act to deport Venezuelans accused of being gang members, because, quote, “We find no invasion or predatory incursion had occurred.” The 5th Circuit is considered to be one of the most conservative appeals courts in the United States. The case is expected to head to the Supreme Court.
For more, we go to Washington, D.C., where we’re joined by Aaron Reichlin-Melnick, senior fellow at the American Immigration Council.
Aaron, welcome back to Democracy Now! Let’s start with that last overnight court decision. If you can talk about this very conservative court ruling against Trump using the Alien Enemies Act, the AEA, and then just go through these latest decisions in the last two days?
AARON REICHLIN-MELNICK: Yeah, well, first, starting with the Alien Enemies Act, we saw the 5th Circuit, in a two-one decision, rule that the Alien Enemies Act is a wartime authority, which is what everyone has been saying so far. The judges’ panel’s rule, it was a two-one decision. They joined over a dozen other federal judges to rule that this law, adopted in 1798 during the quasi-war with France, and that has only ever previously been invoked during declared wars, is in fact a wartime authority and not something that can be used to deport Venezuelan alleged gang members without any due process whatsoever. So this is yet another blow for the Trump administration in their efforts to use the Alien Enemies Act. And though we know that this case will eventually make it to the Supreme Court, at the Supreme Court, as well, the Trump administration is zero for two in their efforts to use the law without any due process.
Beyond that, of course, we had Judge Breyer’s decision in California finding that the President violated the Posse Comitatus Act when the military was used for domestic law enforcement, things like riot control or crowd control in Los Angeles.
JUAN GONZÁLEZ: And for those who are not aware, what is the Posse Comitatus Act?
AARON REICHLIN-MELNICK: The Posse Comitatus Act is a 150-year-old law, adopted after the Civil War, that says extremely clearly that the U.S. military may not be used for domestic law enforcement unless explicitly authorized to do so by Congress. And here, Congress has never authorized the military to be used for basic law enforcement tasks like crowd control.
JUAN GONZÁLEZ: Also, if you could comment on the federal judge’s decision over the weekend stopping the Trump administration from illegally deporting as many as 700 Guatemalan children in the middle of the night back to Guatemala?
AARON REICHLIN-MELNICK: Yeah, that’s another case that looks very suspiciously similar to the kinds of things the Trump administration did in the Alien Enemies Act case. They adopted a very out-there, bizarre legal interpretation that had never been for — been put forward, and then tried to execute mass removals in the middle of the night, or very early in the morning, before a judge could stop them. In this case, a judge acted at 2 a.m. to put forward an order to block the Trump administration, and continued forward that order and her actions throughout the day, so they did, in fact, prevent the planes from taking off.
But at its heart, this resulted from — this was a result of the Trump administration’s bizarre claim that the Office of Refugee Resettlement has an authority to effectively run its own shadow repatriation system and has the ability to send children home outside of the normal constraints of immigration law, which include things like the right to seek asylum. So, those flights have been blocked. This case will now continue forward in the courts. But unlike what happened with the Alien Enemies Act and the deportations to El Salvador, the planes did not manage to take off and deplane their passengers.
AMY GOODMAN: Meanwhile, Defense Secretary Pete Hegseth has authorized up to 600 military lawyers to serve as temporary immigration judges. The head of the American Immigration Lawyers Association, Ben Johnson, warned the decision will gut due process and undermine the immigration court. He said to the Associated Press, “It makes as much sense as having a cardiologist do a hip replacement.” Talk about the meaning of Army lawyers becoming immigration judges.
AARON REICHLIN-MELNICK: Yeah, Ben Johnson is right here. The reality is that immigration law is extraordinarily complex, and it’s often been described as second in complexity only to the tax system. And immigration court has often been described as death penalty cases in traffic court procedures. So, what we have here are 600 lawyers, who may very well be good lawyers and conscientious, but have absolutely no experience in immigration law whatsoever, and they’re being assigned to take cases that could lead to someone’s death if they’re decided wrong. While undoubtedly they could eventually become experts in immigration law with months and months of training, these deployments are supposed to last only 179 days. So, you have people who have been or are going to be ordered to take on these incredibly weighty, difficult, complex cases, without any of the relevant experience they need, which is only going to strain the immigration court system. And indeed, the purpose of this is clear. Corey Lewandowski, who is a senior adviser to Secretary Noem, and, of course, a longtime member of Trump world, said on X yesterday that the goal of this is to increase deportations. And I think that really gives away the game.
AMY GOODMAN: So much for being with us —
JUAN GONZÁLEZ: Yeah, I wanted to —
AMY GOODMAN: Oh, go ahead, Juan.
JUAN GONZÁLEZ: No, no, I just wanted to ask him about the pending invasion of Chicago by both federal agents and the military, especially this idea that Trump has of bringing National Guard troops from, essentially, Republican states to occupy largely minority cities in Democratic states.
AARON REICHLIN-MELNICK: Yeah, I think, as Governor Pritzker has stated, this is particularly disturbing. You know, when you look at the statistics, Chicago is not even in the top 20 most violent cities, which is not to say, of course, that there are not issues with gun violence, but not ones that would justify deploying the National Guard.
But I want to emphasize that, you know, beyond the National Guard, this is in many ways also about immigration. Here in Washington, D.C., the National Guard has mostly been standing around the Mall or doing tasks like spreading mulch and picking up trash. But what’s actually been happening, most significantly, is the invasion of the city by federal law enforcement officers to carry out immigration enforcement. You have ICE and the Metropolitan Police Department setting up checkpoints in major thoroughfares in the city. You have a major increase in ICE raids across the city and people being afraid to take their children to school. So, while a lot of the attention in Chicago is going to be on the National Guard deployment, keep an eye out for what ICE is doing, because this could be yet another Los Angeles, where we see huge increase in immigration enforcement throughout the city and immigrant communities forced to shrink back in fear.
AMY GOODMAN: Aaron Reichlin-Melnick, senior fellow at the American Immigration Council, thanks so much.
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