I saw this week that New York Gov. Kathy Hochul has proposed legislation not only to bar local police departments from forming partnerships with ICE to enforce federal immigration law but also to prohibit federal agents from entering private homes in the state without judicial warrants.
The move against so-called 287(g) cooperation agreements seems like a positive step, and indeed like the realization of some of the things I’ve been arguing should happen for months, namely that governors and other state and local officials should stop simply reacting to increasingly aggressive federal intrusions and start actively safeguarding their populations (don’t know how I became the states’-rights-from-the-left guy, but here we are). What really caught my attention when I heard about Hochul’s latest moves, though, was that a state governor was pushing her state legislature to act to ban something that is already plainly unconstitutional.
Federal agents, like all police, are barred by the Fourth Amendment from entering private residences without a judicial warrant except in circumstances where there is an imminent danger, for example. President Donald Trump’s immigration “czar,” Tom Homan, himself admitted last year that this was the case. (If you want a more technical analysis, I found this article by Stanford legal scholar Orrin Kerr informative; it explains why the administration’s arguments aren’t necessarily frivolous but almost certainly wrong on the merits). Yet that didn’t stop the administration from issuing what is an obviously, flagrantly illegal memo directing agents to enter private homes with only administrative warrants signed by ICE supervisors themselves.
I understand that Hochul here is probably just trying to more firmly establish grounds for people to use state courts to sue federal agents who violate their constitutional rights. But I still found myself feeling a bit of frustration at the notion of a legislative push to ban something already forbidden, especially after reading headlines like this one from ABC7 New York, “ICE memo gives agents broad authority to arrest those they believe are undocumented without warrant.”
Here’s the thing: the memo does not give agents that authority, any more than my issuing a memo saying I don’t have to pay taxes would hold up in court. It’s the same kind of “sovereign citizen” logic but applied to an armed federal agency. But for some reason a lot of the public discourse around the memo seems to take the administration’s position seriously, or even as fact. I see this in the congressional negotiations over the Department of Homeland Security’s budget and Democratic proposals to constrain the actions of ICE agents in Congress.
The talks are being treated by both Democrats and the press as one more congressional push-pull, a political negotiation like any other. But this is not like a negotiation over the debt or healthcare regulation; those are contentious and significant issues, but of the kind that are routinely addressed within the parameters of our political system. What the thousands of ICE agents set loose in Minneapolis and elsewhere are doing is not something normal to be worked out within those parameters, under any understanding of the U.S. legal or political framework. What ICE is pursuing is true authoritarianism. Its agents are the armed agents of an administration that is not trying to win a debate but subsume and ultimately destroy the system.
I don’t always think it’s useful to dig too deeply into questions of semantics and phrasing among media and political figures. Yet, as I teach my students in my introductory journalism class, at its core reporting provides a lens through which the public can concretely visualize the unfathomable complexity of reality. Our task is to understand that complexity as best we can and convey some slice of it, in context as accurately as we can manage.
Examining the premises of a public debate is, I think, as important as the back-and-forth of the debate itself. And in the grand scheme of things, nothing matters more to how events play out than public understanding and opinion. It is only broad public outrage that has begun to temper the administration’s paramilitary efforts — it’s what led Trump to remove Border Patrol Commander Gregory Bovino from his post leading the immigration crackdown in Minneapolis, and what led to Homan announcing the withdrawal of hundreds of federal agents from Minnesota. How the public understands these issues is incredibly important, and so it is crucial that they not be spoken about as just another political scuffle.
Talking as if we’re dealing with something normal like a new tax proposal when we’re dealing with Trump’s assertion of the right to set ICE loose with what administration officials like to call “absolute immunity” or with efforts by state officials or Congress to impose constraints, is already a kind of capitulation. It is allowing the Trump administration to dictate the terms of the conversation, and to begin from a framework that is already outside the political and legal boundaries of the U.S. system. It’s going along with what Trump wants to make a new normal.
A lot of this comes down to pure normalcy bias, our tendency to minimize the chances of disaster by thinking that life will likely continue much as it has. This is particularly acute, I think, among people who came up through the U.S. political system as it used to exist. Politicians and journalists in their 50s or 60s — which is to say, the people who tend to be setting the discourse agenda — had their professional and political identities forged in the early ‘90s, an era that, while it certainly had its pitched debates, had nothing like the yawning and visceral political chasms driving our politics today.
Even then, moneyed and ideologically extreme interests were making investments into and setting the stage for the contemporary breakdown in our politics (I would recommend checking out investigative journalist Jane Mayer’s book, “Dark Money”), but their efforts would not fully come to fruition for another couple of decades. It must be a hard pill to swallow to watch as a sociopolitical environment you saw as relatively innate proved to be so fragile and so quick to completely destabilize. But sticking our heads in the sand isn’t going to do.
The other thing that I think we should be wary of is the notion that the peril we face today just sprang out of nowhere, a complete anomaly and aberration resulting from purely contemporary realities. Obviously, the U.S. has long histories of racism and exploitation and oligarchy and so on, but I don’t mean something as high level and abstract as that.
The visceral horrors of Jeffrey Epstein’s history of exploitation and abuse has somewhat overshadowed other significant takeaways from the latest releases of Epstein files, which show the onetime financier communicating with prominent figures across the political, business and media elite on topics including race science, cultural trends, Brexit and the opportunities inherent in social collapse. Among the many bizarre tidbits in the files was Epstein’s meeting with 4chan founder Chris Poole, after which Poole resurrected the site’s politics channel, which was arguably the key locus of the development of the political identity we know today as the alt-right.
These are all just revelations from one set of emails connected to one particularly infamous member of the nation’s moneyed elite, but it’s a glimpse into how aspects of our current moment were actively engineered by people who wanted our society to decay in just the ways it has been decaying. In normalizing them, we are only helping.
