It was just last month that Brett Kavanaugh gave his explanation for why it was perfectly okay for Homeland Security goons to profile brown people and detain them based on nothing more than the color of their skin. While his cowardly colleagues in the majority on that shadow docket decision refused to explain their thinking, Kavanaugh actually wrote a concurrence that was so out of touch with reality as to be embarrassing. But at least it was an explanation.
The key bit from him that has stood out is this:
Importantly, reasonable suspicion means only that immigration officers may briefly stop the individual and inquire about immigration status.If the person is a U. S. citizen or otherwise lawfully in the United States, that individual will be free to go after the brief encounter. Only if the person is illegally in the United States may the stop lead to further immigration proceedings.
It’s this weird, privileged, out-of-touch statement that if ICE or CBP stop you for being brown, they’ll let you go as soon as you show them that you’re an American citizen. Of course, we knew at the time that wasn’t true. Hell, there were details that Kavanaugh ignored in that very lawsuit, which Justice Sotomayor called out in her dissent. But literally in this very lawsuit was the documentation of how it wasn’t so simple:
To give just one example,Plaintiff Jason Brian Gavidia is a U.S. citizen who was born and raised in East Los Angelesand identifies as Latino. On the afternoon of June 12, he stepped onto the sidewalk outside of a tow yard in Montebello, California, where he saw agents carrying handguns and military-style rifles. One agent ordered him to “Stop right there” while another “ran towards [him].”The agents repeatedly asked Gavidia whether he is American—and they repeatedly ignored his answer: “I am an American.”The agents asked Gavidia what hospital he was born in—and he explained that he did not know which hospital. “The agents forcefully pushed [Gavidia] up against the metal gated fence, put [his] hands behind [his] back, and twisted [his] arm.” An agent asked again, “What hospital were you born in?” Gavidia again explained that he did not know which hospital and said “East L.A.”He then told the agents he could show them his Real ID. The agents took Gavidia’s ID and his phone and kept his phone for 20 minutes. They never returned his ID.
Drexel law professor Anil Kalhan quickly dubbed these bullshit pretextual stops of US citizens as “Kavanaugh stops” and the name has stuck.
While there is an effort to challenge these further in court, for now the goon squad known as ICE is unleashed even more than usual. We now know that there are at least 170 US citizens who have been held by immigration officials, and there are probably even more not yet accounted for.
It feels like every day we hear about another few:
ICE violently detain father & son walking to school—teenage boy had to be rushed to hospital."I was just going to school," kid cries out. "I'm underage!"The 16-year-old star athlete is a U.S. citizen—agents sent him to the hospital with severe injuries to his back & neck.Houston, Texas.
These Kavanaugh stops are a stain on the American concept of civil liberties and due process, and they should be a stain on Brett Kavanaugh’s legacy. Legal journalist Chris Geidner just ran a piece on 50 days of Kavanaugh stops, and what a shameful moment this is of American bigotry.
Geidner has directly submitted questions to Kavanaugh to see how he feels about all of these Kavanaugh stops that show his claim of “brief encounters” with law enforcement were bullshit:
I asked Justice Kavanaugh on October 14, “Do you have any comment on the ICE stop of Maria Greeley, a U.S. citizen, who was reportedly stopped, ziptied, and told she didn’t ‘look like’ a ‘Greeley’ despite being a U.S. citizen?“
On both occasions, I also asked Kavanaugh whether he still thinks he was correct when he wrote that these stops are “typically brief” and that all of this is fine because “individuals may promptly go free after making clear to the immigration officers that they are U. S. citizens or otherwise legally in the United States.”
Finally, I asked Kavanaugh if he was aware of the “Kavanaugh stop” terminology and whether he had any comment on it.
[….]
So, I asked Justice Kavanaugh on October 16, “Do you have any comment on the Pro Publica report that found ‘more than 50 Americans who were held after [immigration] agents questioned their citizenship’ during 2025. ‘They were almost all Latino,’ per the report.“
In addition to the other questions previously raised, I also asked Kavanaugh whether “the possibility of after-the-fact ‘excessive force’ claims” is “a sufficient answer to this ongoing, regularly occurring problem?”
Did you guess what happened? Of course you did!
I have not received a response from him or his chambers.
You can already see the horrific legacy that is forming around the concept of Kavanaugh stops. This is a legacy that doesn’t go away easily. It’s like the Dred Scott decision, the Korematsu decision, or Buck v. Bell. Supreme Court decisions that nearly everyone now looks back on in horror.
These are all horrible, hateful decisions by out-of-touch bigots, who can’t even fathom a world in which those less fortunate themselves even matter, and thus their rights and dignity are barely given a second thought.
The Supreme Court still has a chance to fix this, since Kavanaugh stops were only defined by Justice Kavanaugh in a shadow docket concurrence. While those other cases all took decades for everyone to realize how fucked up they were, this one we can see in real time what a stain it is for anyone who believes that America respects basic civil liberties like due process and concepts like probable cause.
But, for now at least, that stain should stick to Brett Kavanaugh. He’s justified this. He’s insisted these kinds of stops are no big deal, even as there was evidence then, and even with more mounting evidence now, that immigration officials don’t give a shit if you are an American citizen. If you’re darker skinned, they can treat you like shit, lock you up, beat you up, ignore your protestations and even evidence of American citizenship.
It is a deep, dark stain on America as a supposed land of freedom, and it should be tied up with Brett Kavanaugh’s legacy forever.
When Immigration and Customs Enforcement officers stormed through Santa Ana, California, in June, panicked calls flooded into the city’s emergency response system.
Recordings of those calls, obtained by ProPublica, captured some of the terror residents felt as they watched masked men ambush people and force them into unmarked cars. In some cases, the men wore plain clothes and refused to identify themselves. There was no way to confirm whether they were immigration agents or imposters. In six of the calls to Santa Ana police, residents described what they were seeing as kidnappings.
“He’s bleeding,” one caller said about a person he saw yanked from a car wash lot and beaten. “They dumped him into a white van. It doesn’t say ICE.”
One woman’s voice shook as she asked, “What kind of police go around without license plates?”
And then this from another: “Should we just run from them?”
During a tense public meeting days later, Mayor Valerie Amezcua and the City Council asked their police chief whether there was anything they could do to rein in the federal agents — even if only to ban the use of masks. The answer was a resounding no. Plus, filing complaints with the Department of Homeland Security was likely to go nowhere because the office that once handled them had been dismantled. There was little chance of holding individual agents accountable for alleged abuses because, among other hurdles, there was no way to reliably learn their identities.
Since then, Amezcua, 58, said she has reluctantly accepted the reality: There are virtually no limits on what federal agents can do to achieve President Donald Trump’s goal of mass deportations. Santa Ana has proven to be a template for much larger raids and even more violent arrests in Chicago and elsewhere. “It’s almost like he tries it out in this county and says, ‘It worked there, so now let me send them there,’” Amezcua said.
Current and former national security officials share the mayor’s concerns. They describe the legions of masked immigration officers operating in near-total anonymity on the orders of the president as the crossing of a line that had long set the United States apart from the world’s most repressive regimes. ICE, in their view, has become an unfettered and unaccountable national police force. The transformation, the officials say, unfolded rapidly and in plain sight. Trump’s DHS appointees swiftly dismantled civil rights guardrails, encouraged agents to wear masks, threatened groups and state governments that stood in their way, and then made so many arrests that the influx overwhelmed lawyers trying to defend immigrants taken out of state or out of the country.
And although they are reluctant to predict the future, the current and former officials worry that this force assembled from federal agents across the country could eventually be turned against any groups the administration labels a threat.
One former senior DHS official who was involved in oversight said that what is happening on American streets today “gives me goosebumps.”
Speaking on condition of anonymity for fear of retaliation, the official rattled off scenes that once would’ve triggered investigations: “Accosting people outside of their immigration court hearings where they’re showing up and trying to do the right thing and then hauling them off to an immigration jail in the middle of the country where they can’t access loved ones or speak to counsel. Bands of masked men apprehending people in broad daylight in the streets and hauling them off. Disappearing people to a third country, to a prison where there’s a documented record of serious torture and human rights abuse.”
The former official paused. “We’re at an inflection point in history right now and it’s frightening.”
Although ICE is conducting itself out in the open, even inviting conservative social media influencers to accompany its agents on high-profile raids, the agency operates in darkness. The identities of DHS officers, their salaries and their operations have long been withheld for security reasons and generally exempted from disclosure under the Freedom of Information Act. However, there were offices within DHS created to hold agents and their supervisors accountable for their actions on the job. The Office for Civil Rights and Civil Liberties, created by Congress and led largely by lawyers, investigated allegations of rape and unlawful searches from both the public and within DHS ranks, for instance. Egregious conduct was referred to the Justice Department.
The CRCL office had limited powers; former staffers say their job was to protect DHS by ensuring personnel followed the law and addressed civil rights concerns. Still, it was effective in stalling rushed deportations or ensuring detainees had access to phones and lawyers. And even when its investigations didn’t fix problems, CRCL provided an accounting of allegations and a measure of transparency for Congress and the public.
The office processed thousands of complaints — 3,000 in fiscal year 2023 alone — ranging from allegations of lack of access to medical treatment to reports of sexual assault at detention centers. Former staffers said around 600 complaints were open when work was suspended.
The administration has gutted most of the office. What’s left of it was led, at least for a while, by a 29-year-old White House appointee who helped craft Project 2025, the right-wing blueprint that broadly calls for the curtailment of civil rights enforcement.
Meanwhile, ICE is enjoying a windfall in resources. On top of its annual operating budget of $10 billion a year, the so-called One Big Beautiful Bill included an added $7.5 billion a year for the next four years for recruiting and retention alone. As part of its hiring blitz, the agency has dropped age, training and education standards and has offered recruits signing bonuses as high as $50,000.
“Supercharging this law enforcement agency and at the same time you have oversight being eliminated?” said the former DHS official. “This is very scary.”
Michelle Brané, a longtime human rights attorney who directed DHS’ ombudsman office during the Biden administration, said Trump’s adherence to “the authoritarian playbook is not even subtle.”
“ICE, their secret police, is their tool,” Brané said. “Once they have that power, which they have now, there’s nothing stopping them from using it against citizens.”
Tricia McLaughlin, the DHS assistant secretary for public affairs, refuted descriptions of ICE as a secret police force. She called such comparisons the kind of “smears and demonization” that led to the recent attack on an ICE facility in Texas, in which a gunman targeted an ICE transport van and shot three detained migrants, two of them fatally, before killing himself.
In a written response to ProPublica, McLaughlin dismissed the current and former national security officials and scholars interviewed by ProPublica as “far-left champagne socialists” who haven’t seen ICE enforcement up close.
“If they had,” she wrote, “they would know when our heroic law enforcement officers conduct operations, they clearly identify themselves as law enforcement while wearing masks to protect themselves from being targeted by highly sophisticated gangs” and other criminals.
McLaughlin said the recruiting blitz is not compromising standards. She wrote that the Federal Law Enforcement Training Center is ready for 11,000 new hires by the beginning of next year and that training has been streamlined and boosted by technology. “Our workforce never stops learning,” McLaughlin wrote.
White House spokesperson Abigail Jackson also praised ICE conduct and accused Democrats of making “dangerous, untrue smears.”
“ICE officers act heroically to enforce the law, arrest criminal illegal aliens and protect American communities with the utmost professionalism,” Jackson said. “Anyone pointing the finger at law enforcement officers instead of the criminals are simply doing the bidding of criminal illegal aliens and fueling false narratives that lead to violence.”
Homeland Security Secretary Kristi Noem, the Trump pick who fired nearly the entire civil rights oversight staff, said the move was in response to CRCL functioning “as internal adversaries that slow down operations,” according to a DHS spokesperson.
Trump also eliminated the department’s Office of the Citizenship and Immigration Services Ombudsman, which was charged with flagging inhumane conditions at ICE detention facilities where many of the apprehended immigrants are held. The office was resurrected after a lawsuit and court order, though it’s sparsely staffed.
The hobbling of the office comes as the White House embarks on an aggressive expansion of detention sites with an eye toward repurposing old jails or building new ones with names that telegraph harsh conditions: “Alligator Alcatraz” in the Florida Everglades, built by the state and operated in partnership with DHS, or the “Cornhusker Clink” in Nebraska.
“It is a shocking situation to be in that I don’t think anybody anticipated a year ago,” said Erica Frantz, a political scientist at Michigan State University who studies authoritarianism. “We might’ve thought that we were going to see a slide, but I don’t think anybody anticipated how quickly it would transpire, and now people at all levels are scrambling to figure out how to push back.”
“Authoritarian Playbook”
Frantz and other scholars who study anti-democratic political systems in other countries said there are numerous examples in which ICE’s activities appear cut from an authoritarian playbook. Among them was the detention of Tufts University doctoral student Rümeysa Öztürk, who was apprehended after co-writing an op-ed for the campus paper that criticized the school’s response to the war in Gaza. ICE held her incommunicado for 24 hours and then shuffled her through three states before jailing her in Louisiana.
“The thing that got me into the topic of ‘maybe ICE is a secret police force’?” said Lee Morgenbesser, an Australian political science professor who studies authoritarianism. “It was that daylight snatching of the Tufts student.”
Morgenbesser was also struck by the high-profile instances of ICE detaining elected officials who attempted to stand in their way. Among them, New York City Comptroller Brad Lander was detained for demanding a judicial warrant from ICE, and U.S. Sen. Alex Padilla was forcibly removed from a DHS press conference.
And David Sklansky, a Stanford Law School professor who researches policing and democracy, said it appears that ICE’s agents are allowed to operate with complete anonymity. “It’s not just that people can’t see faces of the officers,” Sklansky said. “The officers aren’t wearing shoulder insignia or name tags.”
U.S. District Judge William G. Young, a Ronald Reagan appointee, recently pointed out that use of masked law enforcement officers had long been considered anathema to American ideals. In a blistering ruling against the administration’s arrests of pro-Palestinian protesters, he wrote, “To us, masks are associated with cowardly desperados and the despised Ku Klux Klan. In all our history we have never tolerated an armed masked secret police.” The Trump administration has said it will appeal that ruling.
Where the Fallout is Felt
The fallout is being felt in places like Hays County, Texas, not far from Austin, where ICE apprehended 47 people, including nine children, during a birthday celebration in the early morning of April 1.
The agency’s only disclosure about the raid in Dripping Springs describes the operation as part of a yearlong investigation targeting “members and associates believed to be part of the Venezuelan transnational gang, Tren de Aragua.”
Six months later, the county’s top elected official told ProPublica the federal government has ignored his attempts to get answers.
“We’re not told why they took them, and we’re not told where they took them,” said County Judge Ruben Becerra, a Democrat. “By definition, that’s a kidnapping.”
In the raid, a Texas trooper secured a search warrant that allowed law enforcement officers to breach the home, an Airbnb rental on a vast stretch of land in the Hill Country. Becerra told ProPublica he believes the suspicion of drugs at the party was a pretense to pull people out of the house so ICE officers who lacked a warrant could take them into custody. The Texas Department of Public Safety did not respond to a request for comment.
The Trump administration has yet to produce evidence supporting claims of gang involvement, said Karen Muñoz, a civil rights attorney helping families track down their relatives who were jailed or deported. While some court documents are sealed, nothing in the public record verifies the gang affiliation DHS cited as the cause for the birthday party raid.
“There’s no evidence released at all that any person kidnapped at that party was a member of any organized criminal group,” Muñoz said.
McLaughlin, the DHS spokesperson, did not respond to questions about Hays County and other raids where families and attorneys allege a lack of transparency and due process.
In Plain Sight
Months after ICE’s widely publicized raids, fear continues to envelop Santa Ana, a majority-Hispanic city with a large immigrant population. Amezcua, the mayor, said the raids have complicated local policing and rendered parents afraid to pick up their children from school. The city manager, a California-born citizen and Latino, carries with him three government IDs, including a passport.
Raids of car washes and apartment buildings continue, but the community has started to “push back,” Amezcua said. “Like many other communities, the neighbors come out. People stop in the middle of traffic.”
With so few institutional checks on ICE’s powers, citizens are increasingly relying on themselves. On at least one occasion in nearby Downey, a citizen’s intervention had some effect.
On June 12, Melyssa Rivas had just started her workday when a colleague burst into her office with urgent news: “ICE is here.”
The commotion was around the corner in Rivas’ hometown, a Los Angeles suburb locals call “Mexican Beverly Hills” for its stately houses and affluent Hispanic families. Rivas, 31, the daughter of Mexican immigrants, belongs to Facebook groups where residents share updates about cultural festivals, church programs and, these days, the presence of Trump’s deportation foot soldiers.
Rivas had seen posts about ICE officers sweeping through LA and figured Downey’s turn had come. She and her co-worker rushed toward the sound of screaming at a nearby intersection. Rivas hit “record” on her phone as a semicircle of trucks and vans came into view. She filmed at least half a dozen masked men in camouflage vests encircling a Hispanic man on his knees.
Her unease deepened as she registered details that “didn’t seem right,” Rivas recalled in an interview. She said the parked vans had out-of-state plates or no tags. The armed men wore only generic “police” patches, and most were in street clothes. No visible insignia identified them as state or federal — or even legal authorities at all.
“When is it that we just decided to do things a different way? There’s due process, there’s a legal way, and it just doesn’t seem to matter anymore,” Rivas said. “Where are human rights?”
Video footage shows Rivas and others berating the officers for complicity in what they called a “kidnapping.” Local news channels later reported that the vehicles had chased the man after a raid at a nearby car wash.
“I know half of you guys know this is fucked up,” Rivas was recorded telling the officers.
Moments later, the scene took a turn. As suddenly as they’d arrived, the officers returned to their vehicles and left, with no apology and no explanation to the distraught man they left on the sidewalk.
Through a mask, one of them said, “Have a good day.”
The White House’s recently-unveiled “AI Action Plan” wages war on so-called “woke AI”—including large language models (LLMs) that provide information inconsistent with the administration’s views on climate change, gender, and other issues. It also targets measures designed to mitigate the generation of racial and gender biased content and even hate speech. The reproduction of this bias is a pernicious problem that AI developers have struggled to solve for over a decade.
A new executive order called “Preventing Woke AI in the Federal Government,” released alongside the AI Action Plan, seeks to strong-arm AI companies into modifying their models to conform with the Trump Administration’s ideological agenda.
The executive order requires AI companies that receive federal contracts to prove that their LLMs are free from purported “ideological biases” like “diversity, equity, and inclusion.” This heavy-handed censorship will not make models more accurate or “trustworthy,” as the Trump Administration claims, but is a blatant attempt to censor the development of LLMs and restrict them as a tool of expression and information access. While the First Amendment permits the government to choose to purchase only services that reflect government viewpoints, the government may not use that power to influence what services and information are available to the public. Lucrative government contracts can push commercial companies to implement features (or biases) that they wouldn’t otherwise, and those often roll down to the user. Doing so would impact the 60 percent of Americans who get information from LLMs, and it would force developers to roll back efforts to reduce biases—making the models much less accurate, and far more likely to cause harm, especially in the hands of the government.
Less Accuracy, More Bias and Discrimination
It’s no secret that AI models—including gen AI—tend to discriminate against racial and gender minorities. AI models use machine learning to identify and reproduce patterns in data that they are “trained” on. If the training data reflects biases against racial, ethnic, and gender minorities—which it often does—then the AI model will “learn” to discriminate against those groups. In other words, garbage in, garbage out. Models also often reflect the biases of the people who train, test, and evaluate them.
This is true across different types of AI. For example, “predictive policing” tools trained on arrest data that reflects overpolicing of black neighborhoods frequently recommend heightened levels of policing in those neighborhoods, often based on inaccurate predictions that crime will occur there. Generative AI models are also implicated. LLMs already recommend more criminal convictions, harsher sentences, and less prestigious jobs for people of color. Despite that people of color account for less than half of the U.S. prison population, 80 percent of Stable Diffusion’s AI-generated images of inmates have darker skin. Over 90 percent of AI-generated images of judges were men; in real life, 34 percent of judges are women.
These models aren’t just biased—they’re fundamentally incorrect. Race and gender aren’t objective criteria for deciding who gets hired or convicted of a crime. Those discriminatory decisions reflected trends in the training data that could be caused by bias or chance—not some “objective” reality. Setting fairness aside, biased models are just worse models: they make more mistakes, more often. Efforts to reduce bias-induced errors will ultimately make models more accurate, not less.
Biased LLMs Cause Serious Harm—Especially in the Hands of the Government
But inaccuracy is far from the only problem. When government agencies start using biased AI to make decisions, real people suffer. Government officials routinely make decisions that impact people’s personal freedom and access to financial resources, healthcare, housing, and more. The White House’s AI Action Plan calls for a massive increase in agencies’ use of LLMs and other AI—while all but requiring the use of biased models that automate systemic, historical injustice. Using AI simply to entrench the way things have always been done squanders the promise of this new technology.
We need strong safeguards to prevent government agencies from procuring biased, harmful AI tools. In a series of executiveorders, as well as his AI Action Plan, the Trump Administration has rolled back the already-feeble Biden-era AI safeguards. This makes AI-enabled civil rights abuses far more likely, putting everyone’s rights at risk.
And the Administration could easily exploit the new rules to pressure companies to make publicly available models worse, too. Corporations like healthcare companies and landlords increasingly use AI to make high-impact decisions about people, so more biased commercial models would also cause harm.
We have arguedagainst using machine learning to make predictivepolicingdecisions or other punitivejudgments for just these reasons, and will continue to protect your right not to be subject to biased government determinations influenced by machine learning.
Let’s talk about constitutional hypocrisy so brazen, so comprehensive, so morally bankrupt that it would be laughable if it weren’t so dangerous to the republic.
I’ve learned something about modern Republicans that crystallizes everything wrong with our current political moment: they care more about the constitutionality of Biden’s student debt forgiveness than they do about the 4th and 5th Amendments being universally applied. Let that sink in for a moment.
They’ll spend months screaming about executive overreach when it comes to loan forgiveness—a legitimate constitutional concern, to be fair. But when it comes to the systematic violation of due process rights, when it comes to warrantless searches and seizures, when it comes to the weaponization of law enforcement against political opponents—suddenly, constitutional principles become negotiable.
This isn’t principled constitutional interpretation. This is weaponized constitutionalism—using the Constitution as a cudgel against political enemies while ignoring it entirely when it constrains their own power.
Two plus two equals four. There are twenty-four hours in a day. And the Republican Party has become a fascist organization that simply doesn’t think the Constitution applies to them.
We’ve never seen anything like this in either party in our history until now. Not during the Civil War, when Lincoln suspended habeas corpus but acknowledged he was acting in constitutional gray areas. Not during World War II, when FDR interned Japanese Americans but at least maintained the pretense that all citizens deserved constitutional protection. Not during Watergate, when even Nixon’s defenders argued he was acting within presidential prerogatives rather than claiming he was above the law entirely.
What we’re witnessing now is different. It’s a party that wants power, and it wants that power to be unchallenged by legal or democratic constraints. It’s pushing in every direction it can to solidify its grip on power—from trying to steal elections (like they attempted in North Carolina recently) to illegally shutting down entire government departments mandated by Congress because they perceive them to be filled with ideological enemies.
This is a coup. And the entire party is participating in it.
It wasn’t always this way. The Republican Party once had genuine constitutional conservatives—people like Barry Goldwater, who famously said “Extremism in the defense of liberty is no vice, but moderation in the pursuit of justice is no virtue,” yet still believed in constitutional constraints on power. People like John McCain, who defended the independence of democratic institutions even when it hurt him politically. People like Liz Cheney and Adam Kinzinger, who put constitutional duty above party loyalty.
But here’s what happened: the Republicans who were actually committed to constitutional government were systematically purged from the party. They were branded “RINOs”—Republicans In Name Only—for the sin of believing that constitutional principles should apply even when inconvenient. They were primaried out by candidates who promised more aggressive partisan warfare. They found the door themselves when they could no longer stomach what their party was becoming.
The result is a party that has been hollowed out of anyone who might provide internal resistance to authoritarian drift. The constitutional conservatives didn’t change their principles—they were driven out for having principles at all.
What remains is a party captured by people who view constitutional constraints as obstacles to be overcome rather than principles to be upheld. They kept the constitutional rhetoric—it polls well and provides useful cover—but abandoned the constitutional substance entirely.
The constitutional charade works like this: When Democrats exercise executive power, Republicans discover a sudden, passionate commitment to constitutional limits, separation of powers, and congressional prerogatives. But when Republicans exercise power, these same principles become obstacles to effective governance that must be swept aside in the name of efficiency, national security, or fighting the “deep state.”
Student loan forgiveness? Constitutional crisis! The president can’t possibly have that authority! Where’s Congress? What about the separation of powers?
Defying Supreme Court orders? Well, the Court overstepped its bounds. The executive has inherent authority. Sometimes you have to break a few constitutional eggs to make an authoritarian omelet.
Weaponizing the Justice Department against political opponents? That’s just effective law enforcement. Besides, those people are criminals anyway—due process is a technicality that gets in the way of justice.
Shutting down congressionally mandated agencies? Congress doesn’t understand the complexities of modern governance. The executive knows best. Constitutional requirements are suggestions.
This selective constitutionalism reveals what the modern Republican Party has become: an organization that uses constitutional language tactically while abandoning constitutional principles strategically. The Constitution is useful when it can be weaponized against opponents and inconvenient when it constrains their own authority.
And anybody who claims to oppose this but strategically votes Republican over some issue like trans rights or “woke” culture or taxes is a fool. And a moral traitor to the country.
I don’t care how much you hate progressive social policies. I don’t care how frustrated you are with Democratic economic proposals. I don’t care how offended you are by campus speech codes or diversity training or whatever cultural issue keeps you up at night.
None of that—none of it—justifies voting for a party that has abandoned constitutional government entirely. When you vote for Republicans because you’re angry about trans athletes or critical race theory, you’re not making a strategic choice about policy priorities. You’re voting to end constitutional democracy in America.
You’re saying that your cultural grievances matter more than the rule of law. That your policy preferences matter more than the Constitution itself. That your ideological comfort matters more than preserving the system that makes democratic debate possible in the first place.
This isn’t hyperbole. This isn’t partisan exaggeration. This is the documented reality of what the Republican Party has become: an organization dedicated to establishing one-party rule through the systematic dismantling of constitutional constraints on power.
The tragedy is that the party once had voices who might have prevented this transformation. But they were systematically silenced, marginalized, and expelled for the sin of taking constitutional principles seriously. What remains is a hollowed-out shell using constitutional rhetoric to justify unconstitutional behavior.
And to argue that the GOP is the better party for judicial matters while that very party is actively trying to turn public opinion against the judiciary? That’s very special indeed.
They spent decades building the conservative legal movement, appointing originalist judges, claiming they were restoring respect for the Constitution and the rule of law. And now, when those same courts occasionally issue rulings they don’t like, suddenly the judiciary is illegitimate, biased, part of the “deep state” conspiracy against real Americans.
The Supreme Court isn’t conservative enough when it occasionally rules against Republican interests. Lower courts are activist when they enforce constitutional rights. The entire federal judiciary becomes suspect when it tries to maintain some independence from partisan political pressure.
This is how authoritarianism works: first you capture institutions, then you delegitimize any institution you can’t fully control. First you pack the courts with ideological allies, then you attack the courts when even your allies occasionally follow the law instead of your preferences.
We are watching the live-action implementation of fascism in America, carried out by people who wrap themselves in the flag while systematically destroying what that flag represents. They invoke the Constitution while violating its most basic principles. They claim to defend democracy while working to dismantle democratic institutions.
And the most morally disgusting part? They expect us to treat this as normal political competition. They expect us to pretend that this is just another partisan disagreement, just another election cycle, just another policy debate between competing visions of American governance.
It’s not. This is a party that has purged its constitutional conservatives and embraced authoritarianism. This is a party that believes the Constitution applies to its enemies but not to itself. This is a party that will use any means necessary to gain and maintain power, including the systematic destruction of the legal and institutional frameworks that make democratic self-governance possible.
If you vote for this party for any reason—if you prioritize any policy preference over the preservation of constitutional democracy—you are complicit in the destruction of the American republic. You are helping to dismantle the system that makes political disagreement possible in the first place.
The constitutional conservatives didn’t abandon the Republican Party. The Republican Party abandoned them. What remains is the advancing edge of American fascism dressed up in constitutional rhetoric.
Two plus two equals four. There are twenty-four hours in a day. And anyone who can’t see that the modern Republican Party represents an existential threat to constitutional democracy is either willfully blind or actively complicit in its destruction.
The center must be held. And holding it requires recognizing that there is no center left in the Republican Party—only the hollowed-out shell of what was once a constitutional conservative movement, now captured entirely by forces that view the Constitution as an obstacle rather than a foundation.
Choose accordingly.
Mike Brock is a former tech exec who was on the leadership team at Block. Originally published at his Notes From the Circus.
Donald Trump’s two terms in office have proven Orwell right. No, not the “1984 is not an instruction manual” thing. The other one. Animal Farm. Some animals are more equal than others. At the top of the heap? The pigs.
One of the fundamental rights of every American is to live in a safe community. A Trump Administration will empower our law enforcement officers to do their jobs and keep our streets free of crime and violence. The Trump Administration will be a law and order administration. President Trump will honor our men and women in uniform and will support their mission of protecting the public. The dangerous anti-police atmosphere in America is wrong. The Trump Administration will end it.
Trump was wrong about at least two things in January 2017. First, there’s no “fundamental right” to live in a safe community. If there was such a right, cops would be getting sued and prosecuted for failing to actually, you know, protect and serve. Unfortunately, the courts have made it clear law enforcement gets to have lots of power and extra rights, but they have no Constitutionally-obliged duty of care.
Second, Trump didn’t end the “anti-police atmosphere.” He never had a chance. Cops continued to be cops and before Trump was shoved out of office (following a police-assaulting insurrection attempt by his supporters) Minneapolis police officer Derek Chauvin decided to singlehandedly personify an entire lynch mob by kneeling on unarmed Black man George Floyd’s neck until he stopped breathing… and then for several minutes after that. After that, all bets were off, and Trump still had seven months left in office.
STRENGTHENING AND UNLEASHING AMERICA’S LAW ENFORCEMENT TO PURSUE CRIMINALS AND PROTECT INNOCENT CITIZENS
“Strengthening?” Cops have plenty of power, especially now that so many of them have signed up to be part of the federal War on Brown People. It’s not like cops are easy to sue or prosecute and they’re pretty much able to do whatever they think they’ll get away with at any point in time. There’s already plenty of strength. But (spoiler alert!) they’re going to get even more.
I’m much more concerned about the word “unleashing,” which sounds pretty much like Trump is going remove the few deterrents that actually make cops think twice before violating rights, killing people, or generally just being assholes.
And, indeed, both of the things listed above will happen, if this Executive Order manages to mobilize those just waiting around to be mobilized.
Here’s the lead-in, which is surrounded by a couple of paragraphs that insinuate this is necessary because the United States is besieged by violent criminals. Nothing could be further from the truth, except maybe Donald Trump himself. Crime rates remain at historic lows. And being a cop has never been safer. Nonetheless, the big man is angry because sometimes not everyone is waving “COPS#1!” over-sized novelty foam fingers.
When local leaders demonize law enforcement and impose legal and political handcuffs that make aggressively enforcing the law impossible, crime thrives and innocent citizens and small business owners suffer. My Administration will therefore: establish best practices at the State and local level for cities to unleash high-impact local police forces; protect and defend law enforcement officers wrongly accused and abused by State or local officials; and surge resources to officers in need. My Administration will work to ensure that law enforcement officers across America focus on ending crime, not pursuing harmful, illegal race- and sex-based “equity” policies.
MINNEAPOLIS — Starting Monday, prosecutors in Hennepin County will be required to consider race when offering plea deals, according to a new policy from County Attorney Mary Moriarty.
Of course, this policy won’t survive for long because it’s going to be hard to square it with the Constitution, but there can be little doubt things like these — along with the Administration’s desperate desire to separate itself from anything that resembles diversity, equity, or inclusion (the horror!) — helped prompt this dangerous word salad that could actually give cops the last little push they need to fully become a law unto themselves.
But that’s just the table-setter. The devil is in the details and oh holy fuck, these demons are legion.
Trump starts with promising that cops accused of rights violations and crimes will be lawyered up even more than they already are.
The Attorney General shall take all appropriate action to create a mechanism to provide legal resources and indemnification to law enforcement officers who unjustly incur expenses and liabilities for actions taken during the performance of their official duties to enforce the law. This mechanism shall include the use of private-sector pro bono assistance for such law enforcement officers.
OK. This is insane. And the last sentence indicates Trump and his DOJ plan to lean on the law firms that have already been hit with executive orders. And some may do that to buy their way back into the administration’s good graces. (This assumes the administration has any good and/or grace.) But cops don’t need this. It already exists. Cops are usually represented by union lawyers. Cops that don’t have unions are usually represented by government lawyers. Indemnification is a given, even when cops lose lawsuits. It’s not like cops don’t have a wealth (and by wealth, I mean “taxpayer-funded”) of options when it comes to free lawyers.
The only cops that may not have these options are cops who have been fired, or who have resigned rather than be fired. At that point, they’re no longer cops, which means no expense they incur in defense of their actions is “unjust” and any liability is their own. But these are extremely rare cases. By and large, all this does is create the perception that even ex-officers will be given access to pro bono and/or taxpayer-funded lawyers — a new privilege (that’s being declared like it’s a new right) that this government would never extend to anyone other than its own.
Under the sub-heading “Empowering State and Local Law Enforcement,” Trump has added even more perks and benefits for cops:
(iii) increase pay and benefits for law enforcement officers; (iv) strengthen and expand legal protections for law enforcement officers; (v) seek enhanced sentences for crimes against law enforcement officers
Some cops should be paid more. Some should be paid way, way less. Across the board raises do nothing but burden smaller communities with bills they can’t pay and enrich officers who are earning far above the standard wage for their occupation. While it may attract more people to the law enforcement field, it certainly won’t do anything to make them better than the people that already work there.
We definitely don’t need any expansion of legal protections for officers. Federal officers are already 99.9% impossible to sue in civil court. Regular cops aren’t quite as protected but every government employee has access to qualified immunity, which has been steadily expanded by Supreme Court rulings over the past few decades to create a massive barrier most litigants aren’t able to surmount.
The last one is just more “blue lives matter” garbage — something that turns people who have tons of power and almost zero accountability into a “protected class,” as though police have been marginalized by their own government like every single racial minority in this country since its inception. This somehow attempts to turn cops into the people at the other end of the cop-operated fire hose in 1960’s Birmingham, Alabama, which is one of the stupidest things I can imagine.
Of course, these expanded powers come with the complete removal of responsibility. Trump has already dumped and destroyed the only police accountability database run by the federal government. He’s gutted the DOJ’s Civil Rights Division, leaving what’s left of it to do what it can to prop up [checks notes] Second Amendment rights unfairly trampled by [checks notes again] fairly minor gun control efforts.
Within 60 days of the date of this order, the Attorney General shall review all ongoing Federal consent decrees, out-of-court agreements, and post-judgment orders to which a State or local law enforcement agency is a party and modify, rescind, or move to conclude such measures that unduly impede the performance of law enforcement functions.
Kiss all your ongoing consent decrees goodbye, along with any reform efforts they contained. Not only will the DOJ refuse to punish cops for bad behavior going forward, it’s going to claw back anything any previous administration put in place.
All highly problematic and all guaranteed to set us back two or three decades in terms of law enforcement accountability. But here’s where it jumps the police state shark:
Sec. 4. Using National Security Assets for Law and Order. (a) Within 90 days of the date of this order, the Attorney General and the Secretary of Defense, in consultation with the Secretary of Homeland Security and the heads of agencies as appropriate, shall increase the provision of excess military and national security assets in local jurisdictions to assist State and local law enforcement. (b) Within 90 days of the date of this order, the Secretary of Defense, in coordination with the Attorney General, shall determine how military and national security assets, training, non-lethal capabilities, and personnel can most effectively be utilized to prevent crime.
Paragraph (a) says any restrictions on the federal government’s 1033 program (which allows local law enforcement to buy or obtain for free surplus military gear) are being removed. Anyone wanting anything from a set of filing cabinets to an MRAP (mine-resistant armored personnel vehicle) just has to ask. If it’s in the cupboard, it can likely be had for next to nothing. And because it’s a direct line from cops to the federal government, local oversight likely won’t be allowed to ask questions, much less prevent local officers from playing G.I. Joe with all their new accessories.
I think some of us may be fine with the National Guard being sent in to serve as (non-combatant) backup to police forces overwhelmed during violent riots. I think far too many people are also fine with the National Guard being sent to the border to handle the alleged “border crisis.” (Lord knows current DHS head Kristi Noem definitely is.)
But who’s on board with this? This isn’t asking for the military to respond to some unforeseen situation where immediate violent force is needed to protect lives and communities. This is Trump directing Pete Hegseth to see if the US military might be used to prevent crime. Hell, even regular cops are barely in the “preventing crime” business. This sounds like an excuse for Trump to scramble US warfighters to any place he thinks needs more crime prevention, which will almost certainly be any city run by a liberal where literally any criminal activity of note manages to bubble up into the goldfish tank Trump calls his attention span.
This is a literal police state invitation, being extended by a guy who loves law and order (except when he or his followers are caught up in the system) to a subservient dude who’s just happy to be on TV now and then. It’s a “do what thou wilt shall be the whole of the law,” but I have to imagine even Aleister Crowley during his most hashish-addled days might have thought twice before turning soldiers into cops. And I would like to think even some cops might have a problem with this.
There it is. Prepare for the worst. If you do that, at least you’ll get to enjoy each and every day in which the worst doesn’t happen. And when the worst does happen, at least it won’t be a surprise.
I have no particular interest in the British royal family, but nevertheless I’ll be forever grateful to Princess Kate for telling the world about her cancer. It was probably not easy, nor likely her preference, to be so public at such a difficult moment. But whether she knows it or not, by sharing her story she made it much easier for other cancer patients to face their own moments. I know it did because her announcement came right around the time that I received my own cancer diagnosis, and her candor made it much easier for me to deal with my own situation. If nothing else it helped me find the words to tell people what was going on (“So it turns out I have a Kate Middleton problem…”). But it also helped immeasurably to know right off the bat that I wasn’t alone.
Which is a big reason why I am choosing to talk about what I’ve gone through publicly, to pay it forward so that others suddenly finding themselves in our shoes can also know that they aren’t alone either. But I’m also talking about it here, at BestNetTech, and now, because so much of my situation is directly related to what we talk about here, and the constitutional crossroads the country finds itself at.
Not everything about my situation is salient to what we normally discuss here, of course. As I’ve been dealing with my disease I’ve come to have many things to say about the practical realities of getting treatment as a patient in America. But BestNetTech isn’t (generally) a healthcare policy blog, and (at least up to now) I’ve not been a healthcare policy advocate, so what I may have to say along those lines will be saved for another day and likely another venue.
But what we do talk about here at BestNetTech are issues like personal liberty and innovation, all of which are directly relevant to my situation. Especially given my type of cancer: ovarian. Having a gynecological cancer means that the way personal liberty and innovation have already been assaulted, and remain at risk to be further assaulted, puts my own ability to survive equally under fire. So although BestNetTech is also not (specifically) a reproductive freedom blog, and I’m not (specifically) a reproductive freedom advocate, there is no daylight between those issues and the ones we do talk about. While we sometimes speak of them in the abstract, here they directly affect me and my life, and whether I’ll be able to keep it.
Not just because I found the cancer as a result of trying to prepare for IVF, which is itself becoming illegal. While my cancer would have been found at some point eventually, and maybe not too long after it was, ovarian cancer is virulent – my survival chances hinged on discovery being as quick as it was. Had IVF not been something I was free to pursue, and access to the healthcare professionals I needed to pursue it something I had access to, it might not have been discovered until it was too late. But the freedom I needed to make my own reproductive decisions, and the freedom the professionals needed to help me with them, is now under fire, and in some parts of the country already lost. And with it lives too.
But more than that, the very science of my life is being threatened. The loss of reproductive freedom, and the punitive consequences for any caregiver engaged in it, is leading to a loss of the expertise needed to address gynecological illnesses. My health depends on practitioners expert in how these anatomical parts work. But when applying that knowledge can be construed a crime few will master it. And all that knowledge, hard-won over the years, will be wasted. For centuries and millennia, and even recent decades, women simply ended up dying when some part of their reproductive system had an issue. We just didn’t know how to treat it. But now we do. Yet now we can’t. The loss of reproductive freedom is a loss of so much more than “just” that freedom; it is an abandonment of the science we need to survive, not just our pregnancies but any reproductive infirmity. Losing it does not end abortion; it just means that the only thing being aborted now is women’s futures.
And it’s not just my life and the life of other women being threatened, but everyone’s. The attack on reproductive science is an attack on the freedom to pursue medical science at all. The human body is a tricky machine, and it is amazing that we have accrued any of the understanding that we have about how bodies work. But there is still so much to learn if all humans are going to be able to survive and thrive, and what we are seeing with the criminalization of reproductive medicine is the slamming of the door on any further innovation and understanding, not just for reproductive care but inevitably all care. If the government can force experts to surrender what we have already learned about how to keep patients alive, by now prohibiting that care, it will undermine not just reproductive science but all healthcare science.
For me that science so far means that I can live on. I responded well to treatment and appear to now be cancer free. But ovarian cancer is a cancer that likes to rear its ugly, recurrent head, and if it does I’ll need more science to help me fight it. Just like every cancer patient does with theirs, and anyone else facing any other infirmity does as well.
And the treatment was not without its trauma, as it necessitated losing the organs I needed for pregnancy, organs which, as this episode began, I was hoping to use. But it has actually occurred to me that there is a bitter “upside,” which is that now, if something is growing inside me that could kill me, I won’t have to worry about some states barring me from dealing with it. Cancer may still kill me, but at least pregnancy won’t. Pregnancy, until extremely recently, used to be a survivable condition, even when it went wrong. Now it’s not. And even though on the one hand I grieve the loss of my fertility, on the other I still feel some palpable relief from the anxiety growing post-Dobbs that trying to carry a pregnancy could be the last thing I ever do. This relief of course came at the cost of my reproductive agency, but at least it wasn’t the government that took it away. It’s bad enough that fate can take away reproductive choices; no politician should be able to as well.
It’s been a decade since a federal court declared the New York Police Department’s stop-and-frisk program (mostly) illegal. Judge Shira Scheindlin, in a 195-page decision, pointed out everything that was wrong with the program, which ignored the “Terry stop” parameters defined by the Supreme Court in its 1968 decision to engage in stops of anyone at any time, often accompanied by a “frisk” of the person in hopes of feeling up contraband.
Reasonable suspicion of recent criminal activity was the baseline set by the Supreme Court. The NYPD’s baseline was lower. For the most part, stops/frisks were supported by the reasonable suspicion that the target was a minority moving around in public.
Since that 2013 decision, the NYPD has failed (read: refused) to abide by the fixes proscribed by the federal court. Instead, it has spent the past decade either ignoring the specifics of court-ordered corrective actions or shifting its enforcement efforts to do pretty much the same thing (stop minorities and hassle them) without raising the hackles of its federal oversight.
It’s not all bad news. Stop-and-frisk numbers continue to decline precipitously since their all-time highs prior to the federal court decision in 2013. But it’s not all good, either. As NYC-focused site Gothamist explains (using data obtained by the New York Civil Liberties Union), stops are way down, but the racial bias may be worse than ever.
Police officers reported stopping 8,502 pedestrians in the first half of 2023 – a dramatic drop from the stop and frisk heights of 2011 when police made nearly 700,000 pedestrian stops.
That’s an amazing decrease… in stops, anyway. But the bias that prompted a federal court to order the end of stop-and-frisk as the NYPD preferred to deploy it is still there. Just because it’s happening less often doesn’t mean it’s happening less frequently.
Just 5% of [stopped pedestrians] were white, revealing racial disparities even starker than at the height of former Mayor Michael Bloomberg’s “stop and frisk” era.
A decade on and all NYC residents have is a more finely tuned instrument of racial oppression. This was inadvertently confirmed by the NYPD in its statement to Gothamist.
An NYPD spokesperson said the department does not direct officers to make a certain number of stops, but that police make stops “with increasing levels of precision” based on officers’ observations.
Presumably, this means officers are now capable of detecting whether someone is both black and ambulatory, whereas prior to the reformation of stop-and-frisk, officers just had to guess. The spokesperson calls this 95% non-white targeting “precision.” The NYPD’s data says otherwise:
Of the 7,000 Black and Latino pedestrians the NYPD reported stopping this year, roughly 72% were deemed “innocent.”
Being wrong nearly three-quarters of the time should be no one’s definition of “precision.” And the fact that stops/frisks of white people resulted in a 40% arrest rate doesn’t make things any better or demonstrate the NYPD is just as willing to target Caucasians.
In fact, it shows the opposite of what the NYPD would like it to show or what its spokesperson says the stats show. If 40% of stopped white people are arrested, it simply means NYPD officers are far more careful in their reasonable suspicion calculations when dealing with whites. It’s easier to hassle minorities, which tends to result in a lower hit rate. It’s a bit tougher to deal with people who treat 911 like a customer service line. And if you’re more careful about approaching white people, it stands to reason you’ll only approach those who are practically dripping with suspicion.
And these stats — as damning as they are in this form — are likely even worse than they appear here.
[NYCLU legal director Chris] Dunn estimated that police are making two to three times as many stops as they say under Adams’ public safety strategy, but don’t document unwarranted stops that don’t result in a summons or arrest.
So, these stops are likely under-reported. And biased policing efforts have moved to areas where reasonable suspicion is still the baseline but has yet to be the target of federal court orders and DOJ monitoring. As Gothamist reports, the in-person stops/frisks have largely been replaced by traffic stops. The NYPD performed nearly 670,000 of these last year. Bias-on-foot has been replaced with bias-on-wheels.
About 90% of the drivers searched or arrested were Black or Latino.
Biased policing is still alive and well at the NYPD. It’s just a bit less likely to draw the attention of its federal oversight.
We’re getting a bit more clarity and commonsense applied to lawsuits involving constitutional violations by TSA agents.
As we’re all painfully aware, to fly is to spend some time in often uncomfortably close proximity to a TSA officer. That’s the bargain we make when we choose to board a plane. These searches are far from consensual. And these searches are, far too often, extremely intrusive.
And yet, despite being given certain law enforcement powers (including the ability to restrict someone’s freedom by disrupting their travel plans), federal courts treat TSA officers (TSOs in the courts’ parlance) as regular government employees who sit beyond the reach of the Federal Tort Claims Act.
That has changed in (extremely) recent years. A lawsuit filed by a passenger ended up in the Third Circuit Appeals Court. Twice. The passenger was frisked, handcuffed, and arrested. Her drivers license was confiscated. She was detained for 18 hours and released on $400 bond after TSA agents claimed she struck one of them with her carry-on bag. Somehow that resulted in a local prosecutor attempting to try her on eight criminal charges, including “possession of an instrument of a crime” — referring to the bag she allegedly struck a TSA agent with.
On the first pass, the Third Circuit decided TSA officers weren’t law enforcement officers, even though they are very much responsible for enforcing travel-related laws… like preventing contraband from being brought on board and, opportunistically, searching luggage to make sure no one is carrying too much cash.
Even worse, it bought into this bullshit argument the government made:
The Government […] contends TSA screenings are not searches under § 2680(h)’s proviso because they are consensual and limited in nature.
Whoa. Let’s not get carried away. Buying a plane ticket may be voluntary but being patted down by an agent is anything but voluntary. If a TSA officer decides you need more attention paid to you, more attention will be paid. And there’s no other option. You can decide you’d rather not fly than subject yourself to a physical groping and a digital shakedown of your devices but that’s simply not going to prevent these things from happening. Instead, you’re likely to be detained by the TSA and arrested by law enforcement for attempting to flee the scene of whatever crime the TSA can imagine.
And, as the dissent pointed out then, the government can let all sorts of employees off the litigation hook simply by declaring in court they’re not law enforcement officers, even if all they fucking do is enforce laws.
Fortunately, this lawsuit got a second pass from a panel of Third Circuit judges. This decision went the other way. This time, the government bullshit received no support from the assembled judges.
The Government does not dispute that holding. Instead, it contends that consent by passengers cancels the Fourth Amendment’s effect. But the presence or absence of consent does not determine whether a search has occurred for purposes of the Fourth Amendment. […] In any event, TSO screenings are not consensual. As noted, per TSA regulations any individual who does not consent to a “search or inspection” may not board a flight.
The final call? The Federal Tort Claims Act (FTCA) applies to TSA officers.
Words matter. This core tenet of statutory interpretation channels our conclusion today: TSOs are “investigative or law enforcement officers” as defined in the Tort Claims Act at 28 U.S.C. § 2680(h). They are “officer[s] of the United States” by dint of their title, badge, and authority. They are “empowered by law to execute searches” because, by statutory command and implementing regulation, they may physically examine passengers and the property they bring with them to airports. And the TSOs’ searches are “for violations of Federal law” given that their inspections are for items that federal law bans on aircraft (often with criminal consequences).
The Third Circuit also makes this devastating point about the government’s decision to call mandatory bodily-intrusive searches “administrative.”
Because TSA searches affect the public directly, the potential for widespread harm is elevated. This potential for abuse in borne out by Pellegrino’s own experience. There is a reason that FDA meat inspectors do not generate headlines about sexual assault and other intimate violations.
The Fourth Circuit only took one pass to arrive at the same conclusion. The government’s protestations ignore the plain meaning of easily definable words.
[T]he government asserts the limits it seeks are implicit in the overall provision. Invoking the principle that “words grouped in a list should be given related meanings,” the government says the law enforcement proviso’s references to “seiz[ing] evidence, or . . . mak[ing] arrests for violations of Federal law clearly refer to police powers in criminal investigations.” And so, it continues, the statutory words “execute searches” also must be so limited.
We are unpersuaded. True, the words “make arrests” are limited to the criminal context, and “seiz[ing] evidence” is often—and likely most often—used in that context. But government officials investigate plenty of violations of law that are civil, not criminal, in nature, and there is nothing linguistically strange about using the words “seize evidence” in that context. The government’s premise, in short, does not hold.
Now, the Ninth Circuit Court of Appeals has joined the chorus of appellate voices refusing to pretend TSA officers aren’t law enforcement officers. (That chorus also includes the Eighth Circuit.) The opening of the decision [PDF] makes it clear the Ninth was just as unimpressed by the government’s “not an officer” arguments as the other three courts.
The panel held that a TSO easily satisfies dictionary definitions of officer at the time of the proviso’s enactment in 1974. That TSOs are titled, uniformed, and badged as “officers” reinforces the conclusion that they are“officers of the United States” as understood in ordinary parlance. The panel rejected the government’s contention that the proviso is limited to officers with traditional police powers. While the TSA Administrator did not designate TSO Anita Serrano as a “law enforcement officer” under the Aviation Security Act, this did not preclude her from qualifying as an “officer of the United States” under the FTCA.
And it has this to say about the government’s insistence that TSA searches aren’t actually searches.
The government argued that TSOs do not “execute searches” by conducting screenings. The panel held that the screenings fit the ordinary, contemporary, and common meaning of searches. Further, given the intrusion involved in TSA screenings, caselaw explicitly recognizes them as searches under the Fourth Amendment.
It only takes the court 20 pages to dispense with all of the government’s arguments, almost all of which are repeated assertions that words like “search” and “officer” should only be defined as the government wishes them defined on a case-by-case basis. But, as the Ninth Circuit points out, these words definitely encompass the personnel employed at TSA checkpoints, along with their actions and powers. No sale. The FTCA applies and the lawsuit can move forward.
And with that, about half the nation is united in its ability to bring lawsuits against TSA officers for rights violations. Given this trend, maybe TSOs should stop violating rights so frequently.
That’s just how the Transportation Security Administration (est. one-month-post-9/11 2001) operates. Americans are forced to subject themselves to groping, humiliation, unjustified questioning/searches, seizures of explosive breast milk, etc. just because the federal government thought the only way to respond to terrorists hating us for our freedom was to curb our freedom. (Good news though: you CAN BUY [some of ] IT BACK!)
The TSA is fortunate to be a federal agency. Otherwise, it would be on the verge of bankruptcy (in maybe the fiscal sense — it has long been bankrupt morally and ethically). The little (search) engine that couldn’t (find explosives or actual contraband) continues to limp along, granted yearly funding under the idiotic theory that we’d somehow be less safe if travelers weren’t constantly harassed by an agency that has prevented exactly zero (0) terrorist attacks in its two decades of existence.
Being federal means taking advantage of an additional set of loopholes when being sued. Regular cops only have qualified immunity. Federal cops (by which I mean any federal law enforcement officers) have the baked-in protections afforded by (and extensively expanded by federal courts) the Federal Tort Claims Act (FTCA).
This act prevents all sorts of lawsuits. Those it allows are often tossed because the Supreme Court has said, repeatedly, lower courts aren’t supposed to allow suits to proceed unless they follow the bare minimum of precedent the Supreme Court has managed to create over the past few decades, which is pretty much nothing at all.
So, while you can sue federal officers for, say, firing bullets across the border to kill your child, you’re probably better off spending that money on things you need, rather than things no federal court will allow you to have… you know, like redress for your grievances.
Every so often, though, the federal government assumes too much. And that’s when federal courts step in. The precedent may remain extremely limited, but we’re always happy to see any court decision that limits the government’s power and returns a bit of it to the people who ensure it can cash its paychecks.
This case involves someone who was basically sexually assaulted at a TSA checkpoint. The Fourth Circuit Appeals Court says the case can proceed, citing precedent set in other districts:
May people who claim they were assaulted by Transportation Security Administration screeners sue the federal government under the Federal Tort Claims Act (FTCA)? Joining the Third and Eighth Circuits, we hold the answer is yes.
Erin Osmon went through a checkpoint at a North Carolina airport. The TSA screener claimed the body scanner had “alarmed on her” and told her she would need to “submit” to a physical body search. During this search, the TSA agent “forced” her to spread her legs and “fondled her genitals twice.” After this unscheduled groping, she was apparently free to go.
Osmon sued. The magistrate judge at the lower level recommended dismissal due to a lack of jurisdiction, citing the FTCA’s extensive extension of sovereign immunity. The district court agreed with this initial review and tossed Osmon’s case. Osmon appealed.
The Appeals Court says both layers of the lower court are wrong. The allegations made here are sufficient to sustain a lawsuit against federal law enforcement officers, no matter what limitations are baked into the Federal Tort Claims Act.
Furthermore (as noted above), other federal circuits have found in favor of plaintiffs in similar situations, which means there’s (at the very least) an open question of law as to whether TSA agents can claim sovereign immunity by pretending they’re not federal law enforcement officers.
That’s the pretense that was raised by the TSA, which claimed its efforts to enforce travel security laws did not make its employees officers of the law. But the government cannot reasonably claim these agents are not in the law enforcement business, especially in light of the statutory text of the FTCA.
This appeal thus comes down to a single controlling question: Are TSA screeners “empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law”? 28 U.S.C. § 2680(h). If yes, Osmon’s suit may proceed. If no, it may not.
We conclude the answer is yes. Because the law enforcement proviso “speaks in the disjunctive,” TSA screeners need be empowered only to do one of the three listed things— that is, execute searches, seize evidence, or make arrests.
True, TSA agents often expect other law enforcement agencies to effect arrests, but the entirety of TSA agents’ jobs is to execute searches and, if need be, seize evidence. That’s two-thirds of the definition and that’s more than enough to make TSA agents subject to the Federal Tort Claims Act.
The court says the government is wrong:
The government disagrees, insisting the relevant language covers only searches that are part of “criminal law enforcement.” Per the government, the law enforcement proviso permits suits for battery only when the officercould perform “a criminal, investigatory search” rather than “an administrative search,” which takes the form of an “inspection” or “screening.”
The problem with the government’s argument is that it reprises a tactic the Supreme Court has already rejected: “read[ing] into the text additional limitations designed to narrow the scope of the law enforcement proviso.” The word “criminal” appears nowhere in the law enforcement proviso—let alone as a modifier of “searches.” Here, as elsewhere, we “may not narrow a provision’s reach by inserting words Congress chose to omit.”
Actually, it’s wrong twice:
Undeterred, the government asserts the limits it seeks are implicit in the overall provision. Invoking the principle that “words grouped in a list should be given related meanings,” the government says the law enforcement proviso’s references to “seiz[ing] evidence, or . . . mak[ing] arrests for violations of Federal law clearly refer to police powers in criminal investigations.” And so, it continues, the statutory words “execute searches” also must be so limited.
We are unpersuaded. True, the words “make arrests” are limited to the criminal context, and “seiz[ing] evidence” is often—and likely most often—used in that context. But government officials investigate plenty of violations of law that are civil, not criminal, in nature, and there is nothing linguistically strange about using the words “seize evidence” in that context. The government’s premise, in short, does not hold.
The TSA is composed of officers in uniforms with weapons, badges, powers, and plenty of officiousness. They enforce laws by seizing contraband (I mean, theoretically) and performing searches of passengers and their belongings. They are undeniably federal law enforcement officers. And no deliberate and convenient misreading of this statute changes these undeniable facts. The lawsuit against the TSA may not ultimately prevail. But the government can’t pretend its law enforcement officers aren’t actually law enforcement officers to obtain an early out.
The best news for victims of TSA violations is this: the Fourth has thrown its FTCA hat in with the Third and Eighth Circuits. This creates the sort of issue the Supreme Court might be forced to address. Even if the Supreme Court decides to do the thing it does and refuse to act as a check against government power, the application of the Federal Tort Claims Act to TSA agents in three circuits increases the possibility that violated citizens located everywhere in the nation will at least see their complaints survive a cursory motion to dismiss.
One of the NSA’s most powerful spying tools is up for renewal at the end of the year. The problem with this power isn’t necessarily the NSA. I mean, the NSA has its problems, but the issue here is the domestic surveillance performed by the FBI via this executive power — something it shouldn’t be doing but has almost always done.
The FBI is currently catching a lot of heat for its “backdoor” access to US persons’ data and communications, something it has shown little interest in controlling or tracking. Abuse is a regular occurrence and this abuse finally received some high profile attention after Congressional Republicans got bent out of shape because some of their own people ended up under the FBI’s backdoor Section 702 microscope.
So, while there’s some grandstanding going on, the underlying concerns do need to be addressed. And Democrats have only themselves to blame for allowing the FBI to continue to abuse the privilege. They re-upped the program right after Trump took office. That it’s the Republicans complaining about surveillance abuses after banding together to ensure President Trump had this power is especially ironic. But let’s not forget prominent Democrats who previously complained about surveillance abuses decided it was a good idea to vote in favor of an unaltered reauthorization.
Section 702 allows the NSA to perform “upstream” collections of data and communications. It’s foreign-facing but it also collects any communications between foreign targets and US persons. That’s where the FBI steps in. It’s only supposed to be able to access minimized data and communications, but these restrictions are often ignored by the agency.
With this power on the line, a member of the Privacy and Civil Liberties Oversight Board (PCLOB) is expressing his concern with the ongoing failure of the DOJ and FBI to get the FBI’s abuse of this surveillance power under control.
The PCLOB was formed in the wake of the Snowden leaks to advocate on behalf of Americans and their rights. The PCLOB makes the court adversarial — something it always should have been (since Americans’ rights are often implicated in surveillance requests) but never was.
“I do have concerns with a clean reauthorization,” he said, and he believes the program needs “common-sense protections that could be put in place to balance privacy and civil liberties with the national security interest.”
Specifically, the program needs constraints on the FBI’s access and use of the data collected by the NSA. For years, the FBI has abused its access to perform backdoor searches of Americans’ data. And for years, it has been unable to explain why it can’t stop violating minimization procedures and what, if anything, this unexpected, “incidental” treasure trove contributes to its law enforcement work.
LeBlanc says it’s time to add the Fourth Amendment back into the mix to put an end to this form of secondhand, warrantless surveillance.
LeBlanc also said that “it is apparent we have reached a point where the massive number of U.S. queries, in particular, warrant the use of a prior court order before allowing any search of a Section 702 collection for U.S. persons information.”
To that end, LeBlanc suggests a couple of changes. First, there’s the court order requirement. Then Congress could limit the NSA’s haystack-building apparatus by ending its “about” variables, which allow it to also search for communications that merely mention certain individuals, rather than limiting collection to those actually communicating with the agency’s targets. Finally, Congress should act to limit or forbid “batch searches” of 702 collections by the FBI, preventing it from engaging in mass violations of the Fourth Amendment courts (so far) have ruled the government should never have to answer for.
If anyone can get this done, it’s Congressional leaders motivated by personal animus and political grandstanding. An entire party is, at the moment, extremely angry at the FBI. Blatant self-interest may finally achieve what privacy advocates and activists have been seeking for several years. If the ends are going to justify the means, it may as well be these ends and those means. Some concern for the little people would be nice, but as an advocate of restricted surveillance powers, I’m willing to take what I can get.
