Category: 3-LawSometimeCommentary

Deportations, the administration’s preferred tactic du jour, appear to many as extreme, inadvisable, and often cruel.  Are they unconstitutional?  What framework can we use to determine the rights of citizens versus aliens, even if legal, even if permanent resident?  What kind of process is “due” for the various groups? Where can we locate the origins in our history, and how do they interact with some of the great themes of the Constitution, including the guarantees of the Bill of Rights, and the rights of “persons” as expressed in the 14th Amendment? The case of Mahmoud Khalil offers a set of facts that shed light on these questions, as do other deportations; we start with this one.  

OA1150 - Did the Department of Homeland Security really just give Massachusetts-born immigration attorney Nicole Micheroni seven days to leave the US? Matt has the inside (his law office) scoop on this viral story.

Then in today’s deep dive: what if Congress accidentally legalized some THC products seven years ago and no one noticed? We discuss how this unexpected dutchie was actually passed on the right hand side and what, if anything, Congress should do it about it.

• Nicole’s viral Bluesky post about the notice she received to leave the U.S. in seven days

• U.S. Cannabis Council’s findings on the safety of Delta-8 products

• AK FUTURES LLC v. Boyd Street Distro, LLC, 35 F. 4th 682 (9th Cir. 2022) 

• “2018 Farm Bill's Impact on the Cannabis Industry,” Whitt Steineker, National Law Review (2/25/25)

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This week, the Court weighed in on two cases arising out of the Trump administration’s use of the 1798 Alien Enemies Act to deport people to El Salvador. Kate, Melissa, and Leah break down both rulings, looking at how SCOTUS is giving leeway to the administration. For the second part of the show, Deborah Archer, professor of law at NYU and president of the ACLU, joins to talk about her new book, Dividing Lines: How Transportation Infrastructure Reinforces Racial Inequality.

Hosts’ favorite things this week:

• Leah: Dividing Lines, Deborah Archer; Why Universities Must Start Litigating—and How (The Nation), David Pozen, Ryan Doerfler, and Samuel Bagenstos; The Case for Suing, Adam Unikowsky
• Kate: Princeton President Chris Eisgruber on The Daily; Who Is Government? The Untold Story of Public Service, Michael Lewis
• Melissa: Up Home: One Girl's Journey, Ruth J. Simmons; The White Lotus (Max)

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On this week’s Amicus, autocratic creep in high and low gear. In high gear: The Supreme Court finally issued its order in Kilmar Abrego Garcia’s case, requiring that the government “facilitates” Abrego Garcia’s return from the El Salvadoran prison to which he was illegally and accidentally reditioned, but also recognizing the limits on its authority to direct the executive branch. Dahlia Lithwick talks to Slate senior writer  Mark Joseph Stern about the ways in which the High Court’s attempts to avoid a showdown with the Trump administration may be futile.

Next, Dahlia turns to the autocratic creep in low gear that is President Trump’s buyout of Big Law.  Jessie Weber, managing partner at Brown Goldstein and Levy, shares her view from a firm that has no intention of capitulating government bullying. 

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Thanks to the Harvard Law Review, we recorded a live episode in the famed Austin Hall at Harvard Law School. While we hoped to discuss merits cases, the Court gave us far too much shadow docket activity to break down. 

OA1149 - Even as most of the Biglaw establishment falls to Trump’s whims, lawyers from smaller firms are stepping up to do the most necessary work  on the most important issues of our times. We’re here to tell you a little more about some of them! But first: The House passes the “No Rogue Rulings Act” and we rip into some fascist nonsense from MAGA legal “thinker” Mike Davis defending the President’s absolute  right to call anyone a terrorist and send them to hell without a hearing. Also: DHS’s “evidence”(?) in support of Mahmoud Kahlil’s deportation,  SCOTUS ‘s surprise mid-episode ruling ordering the return of Kilmar Abrego Garcia from a Salvadoran gulag, and more on the truly inspirational lawyers who are aggressively pushing these fights forward.

In today’s footnote: can you sue ChatGPT for “hallucinating” terrible stories about you? One heavily-armed Georgia talk show host is gunning to find out.

• The “No Rogue Rulings Act”  (HR 1526) 

• Amicus brief filed in Korematsu Center et al in Perkins Coie v. DOJ (4/9/25)

• DHS “evidence” filed in Mahmoud Kahlil’s deportation proceedings (4/10/25)

• U.S. Supreme Court’s order in Noem v. Abrego Garcia (04/10/2025)

• Plaintiff’s complaint in Walters v OpenAI  

• “SCOTUS must stop leftist judges' lawless sabotage of Trump agenda | Fox News, Mike Davis (3/31/25)

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OA1148 - We interrupt your regularly scheduled T3BE to bring you three stories of why Immigration and Customs Enforcement is the worst. Matt starts off by reporting on how ICE disappeared one of his detained clients shortly before his scheduled bond hearing this week. On that theme, you might have seen the viral video of an attorney confronting deportation officers at his minor client’s home. What in the world was that? Matt has the brekadown. We then try to understand why the Supreme Court has just agreed that the President can kidnap and throw pretty much any non-citizen* out of the country so long as he calls them “alien enemies”  and ICE mumbles something about due process first.

*citizens TBD

UPDATE: ICE has confirmed since the time of this recording that Matt’s client is in New Mexico, 2200 miles from where he was supposed to have a bond hearing on April 7th.

• U.S. Supreme Court’s 5-4 per curiam order in Trump v. J. G. G. (04/07/2025)

• Video of Virginia attorney James Rivera confronting ICE at his minor client’s home (@7jimmie77) | TikTok

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Markets are crashing; freedom seems under siege; the international order is threatened.  One man’s whim seems to be decisive.  Where are the guardrails of our republic?  We see some glimmers through the darkness, as some of the feedback mechanisms start to kick in.  The constitutional order may be slow but it may not be completely in ruins.  However, there is a threat, and we identify it in not one, but the sum of the actions the president has pursued.  Many of these are unconstitutional; others may well be.  The first step in protecting the republic from these threats is to identify them.  We take that on and at least make a start; the task, in the end, however, will be up to the American people, as Project 2025 may fall to Project 2026.

Here’s a question for you. If you are scooped up by ICE (masked, covering badge numbers), then moved from one detention center to another in quick succession, before being hastily forced onto a flight to El Salvador where you are imprisoned in a “terrorism confinement center” beyond the jurisdiction of the United States –– at what point in that process could you access some kind of adjudicatory review? In this bonus episode of Amicus for Slate Plus members,  Dahlia Lithwick tackles the Supreme Court’s shadow docket decisions in two overlapping but distinct cases stemming from the Trump administration’s renditioning of detainees to an El Salvadorean mega-prison which also happens to be a legal black hole. 

Joined by Slate senior writer Mark Joseph Stern, they explore the legal and procedural concerns, the consequences for due process, and why five justices saw fit to reward the Trump administration for some very out-of-bounds behavior in the lower courts.   

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OA1147 - It’s the retrial of the century, and Matt’s bringing his local perspective for the single most-requested story in OA history. Jury selection is underway for the second trial of Karen Read for her alleged responsibility in the death of Boston police officer John O’Keefe in the same Massachusetts courtroom where a mistrial was declared last July, and we’ve got everything you need to know to follow this case which has become a global phenomenon. We review some of the basic facts as revealed at the last trial and take a closer look at the legal issues. Where did both the prosecution and defense go wrong last time, what has happened between the trials, and what should we expect now? 

• Burnside Fountain (Turtle Boy) - Atlas Obscura

• Defense attorney David Yanetti’s opening statement in Commonwealth v. Read (April 16, 2024)

• READ v. COMMONWEALTH (SJC-13663) (2025)

• Independent audit of the Canton Police Department (April 2, 2025)

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To support the show (and lose the ads!), please pledge at patreon.com/law!

This content is CAN credentialed, which means you can report instances of harassment, abuse, or other harm on their hotline at (617) 249-4255, or on their website at creatoraccountabilitynetwork.org.