ICE in the Age of Trump
2018-03-30 · Guest: Mitch Jeserich (Host of Letters and Politics) · 29:19
Immigration enforcement and federalism in California
Bob Zadek and Mitch Jeserich discuss the legal and political tensions surrounding immigration enforcement in California during the Trump administration. They explore the constitutional principle of anti-commandeering, the debate over terminology like “undocumented” versus “illegal,” and the case for amnesty as a pragmatic and humane policy.
Topics: Immigration, ICE, Sanctuary Cities, Federalism, Anti-commandeering, Amnesty, California Law, Constitutional Law
Speakers: Bob Zadek, Mitch Jeserich
Introduction and Guest Background [00:00]
Bob Zadek: Good morning, everyone. Welcome to the Bob Zadek Show, the longest-running live libertarian talk radio show on radio. We’ve been on for about 11-plus years and counting, including this morning. We are always the show of ideas, never the show of attitude. 424-BOB-SHOW to join my conversation at any time.
And what a conversation we are going to have this morning. I’m delighted to welcome to the show a fellow radio journalist, Mitch Jeserich. Mitch hosts the show Letters and Politics, which is broadcast right across the bay—I’m almost looking at the studio from my studio. He broadcasts on KPFA, Pacifica Radio, a very interesting radio network. Mitch is an incredibly informed and interesting guy with informed and strongly held beliefs.
The topic this morning is the painful, painful topic of immigration. Immigration has become a cause célèbre in the Trump administration. Donald Trump has, in my opinion, irrationally, if not mean-spiritedly—if that’s such a word—declared war on immigrants, looking to throw the “illegal immigrants” (I’ll explain why I say quotes in a moment) out of the country. He is conducting raids. And more relevant to this morning’s show, he is suing—he being the federal government—is suing the state of California. The state of California is suing the Trump administration. A lawyer’s—it doesn’t get any better than that for lawyers. States suing the federal government, the federal government suing the states, bringing before us issues of federalism. What is the province of the states? It is such an interesting, important, and heart-wrenching topic. I couldn’t look forward more to having Mitch on the show. Mitch, welcome to the show this morning.
Mitch Jeserich: Bob, being on the longest continuous libertarian talk radio program is a great pleasure. Thank you.
Bob Zadek: And we’ll send you a Bob Zadek blazer to wear proudly. So thanks very much for commenting on that. Now, Mitch, before we start, just tell us about—because I dare say many of my listeners in Seattle and Portland, Denver, Sacramento may not know about KPFA specifically and Pacifica Radio in general. So tell us about that very unusual network in which you broadcast your Letters and Politics show.
Mitch Jeserich: Yes, very unusual indeed. KPFA is actually one of the first public radio stations in the country that was born out in Berkeley in 1949. Now, there were other quasi-public radio stations, but this was the first radio station that successfully operated on listener contributions alone, which it still does up to this day. It’s separate from NPR; in fact, it predates NPR. It was created by pacifists in the late 1940s who were troubled by—radio was the popular means of information back in the ’40s—and they were troubled by the commercial nature of it. And so they created this radio station.
Over the years, it has become—it’s gone through very many periods, but now it’s most associated with being a radio station that has a lot of progressive ideas that are expressed on it. And one of our most popular radio programs that’s now a television program that people may recognize that came from our network would be Democracy Now! with Amy Goodman. So that would give a good reference point if people have ever heard of Amy Goodman and Democracy Now!. But we are a radio network; we have five stations across the country and then many more affiliates as well. And the show that I work on is called Letters and Politics, and it’s a program that attempts, on a good day anyways, to dive into kind of the history behind the news of the day. We like to try to dig into some history when we’re analyzing what’s in the news of the day.
California v. The Feds: Sanctuary Laws [02:01]
Bob Zadek: Now, Mitch, the interesting topic this morning—we’re going to of course cover as much as we can on immigration—but the interesting topic by which I introduced immigration to our audience this morning is all of this litigation. The Feds suing the state of California, California suing the federal government, and the subject matter of the litigation is immigration. Why in the world is one level of government in our system of federalism suing another level? Why is the second level suing the first level? What’s going on? What’s the dispute between the state of California and the Feds, and of course vice versa?
Mitch Jeserich: Well, it’s really interesting. They haven’t even gotten to the issue of deploying the National Guard yet to the border, so I only imagine this is only going to get more complicated as time goes on. Now, the lawsuits that I’m most aware of are the lawsuits of the federal government coming against the state of California because last year California approved a number of—three measures that you would consider that we would call sanctuary—making California a sanctuary state that may be more hospitable to undocumented immigrants who are here in the state, which there are many.
And so the three bills are: one, that local law enforcement cannot cooperate with immigration officials would be one measure. Another measure is that California itself, the State Attorney General’s office, would have the right to inspect ICE detention centers or basically jails—that would be another. And then the third one is California passed a law that would penalize employers who were to cooperate with the federal government in looking at records for trying to see who is a citizen and who is not. That penalty would be in effect if there was not a warrant. In other words, if the employer was willingly working with the federal government rather than being mandated to through a warrant.
So these are three measures. And of course, California—California is not the only state now, but it really was the first to become what we call a sanctuary state. But this comes out of a number of cities throughout California becoming what we call sanctuary cities. And again, the fundamental idea of it all is that the state is—or the cities are not going to participate, and city law enforcement, the police, are not going to participate with ICE authorities. When I say ICE, this is the Immigration and Customs Enforcement agency within the Homeland Security. They’re responsible for immigration and also for immigration raids that occur.
And so again, there are just a number of cities that are saying that their police will not participate with these ICE raids. This comes as, as you know, Bob, and I’m sure your listeners know well, we have a president who campaigned—whose major tenant of his campaign was going after undocumented immigrants in this country. Jeff Sessions, the Attorney General, has been—and again, this is actually Homeland Security, so it gets a little tricky how this all works where ICE is housed. But nonetheless, Jeff Sessions and the Trump administration overall have been aggressive recently. We’ve seen raids throughout the state of California occurring, including last month a series of raids that were happening in the San Francisco Bay Area where Bob, you and I live and are talking to each other right now. Libby Schaaf, the mayor of Oakland, actually tipped people off before one of these raids, and that really angered the Trump administration, as I’m sure people know by now. And so Jeff Sessions shortly after came to the state and announced that he had lawsuits challenging the three state laws that I laid out earlier.
The Anti-Commandeering Principle [03:31]
Bob Zadek: Now, what’s—I’m of course a con-law junkie. I am passionate in my attempting to understand the nuances of our founding principles and the principles in the Constitution. And this is to me, on that subject alone, it simply doesn’t get any better because there are so many issues, Mitch, as you know, in your presentation of a second ago.
For example, the question is: can a state or local government be compelled to assist the federal government? Well, the answer is probably not. And we dust off a very interesting principle, a very important and deeply embedded principle called “commandeering.” And commandeering teaches us that the federal government cannot order state and local governments to enforce federal law. Our country was founded on principles of federalism with separate but equal branches of government, with the states having their province and the federal government its province. And states cannot be compelled.
Now, this issue of commandeering came about not so recently, but during the era of Prohibition. If you all remember—of course you don’t remember, but you have read and seen movies and read books about the Prohibition era—during that time, the federal government enacted the incredibly unpopular Volstead Act, which basically made it illegal to manufacture and to sell alcohol. And so now it’s illegal; it’s a federal crime. But there is no federal police force. Therefore, how in the world does the federal government enforce a federal crime nationwide without a police force? The answer is they’ve got to get the states to help. And the states weren’t all that willing, and there was that conflict. So enforcement was very spotty, putting aside Eliot Ness, that figure from history.
So the Feds could not put together enough of a federal police force, because it didn’t exist, to enforce Prohibition, and enforcement became absurd. Now, what we are seeing is under federal immigration policy, it requires a lot of boots on the ground to enforce this law. There are a lot of undocumented immigrants in the country; they’re scattered in 50 states. We don’t have a federal police force, so the Feds are somewhat powerless to do anything unless they can commandeer the states to help them. And California is saying, “Shove it. We’re not going to help. We don’t support the policy.” So we have this issue that gets dusted off and perhaps tested in the Supreme Court on the extent to which states cannot be compelled or can be compelled to enforce a federal law.
The Power of Language: “Undocumented” vs. “Illegal” [05:59]
Bob Zadek: And what’s also interesting about the subject of immigration is, Mitch—and I want to spend some time on this—you have used the phrase “undocumented,” I think you said “undocumented immigrants.”
Mitch Jeserich: Yes, I did.
Bob Zadek: Yeah. So “undocumented,” of course, the other phrase, the inaccurate phrase—maybe not that inaccurate—is “illegal immigrants.” And everybody in America, or many people say, “I am opposed to illegal immigration.” And Mitch, the interesting test for me is when I am face-to-face or on the other end of a microphone with somebody who opposes “illegal immigration,” the question I like to pose: “Okay, if you’re opposed to illegal immigrant, which part of that are you opposed to? The illegal part or the immigrant part?” And in other words, if the federal law was “let them all in,” a law which I endorse, then everybody would be here legally. Would you, Mr. Opponent of illegal immigrants, then be happy because everybody is legal? Or is it the immigration part? Or is it the immigration part that you really oppose, in which case let’s drill down and talk about your animus towards immigration? Because people say they oppose illegal immigration, but it’s never the illegal part. It’s the immigrant part.
Mitch Jeserich: That’s right. And your Socratic method there is quite impressive, Bob. I agree with you. And I also think there’s a difference between illegal immigration and illegal immigrant. I guess when you’re describing as somebody, a person being illegal themselves—you know, in my solidarity with my libertarian friends, I don’t want to criminalize anybody needlessly, which I think when we also—I mean, part of this, there’s a legal aspect of it, but then there’s also kind of the public relations or the way we frame language and the way we see people. And I think when we put “illegal” next to somebody describing a group of people, we’re automatically—we’re criminalizing them, we’re separating them, we’re putting them apart, and it’s not in a very positive light. And in fact, it’s a quite demeaning thing that’s happening.
And for me, you know, I’ve actually worked—I have a history of working in the immigrant community before I got into radio. And I didn’t know all the language, and language can sometimes be difficult because language is always changing, right? We see that when it comes to race, when it comes to gender, when it comes to disability—whatever it is, language is always changing and sometimes we use old language when we didn’t realize at the time that it might have been offensive to somebody.
Anyways, it can be complicated. But I remember when I first got involved in the immigrant rights community and I went to go give a presentation to folks—I do speak Spanish—and as I was giving it, I used the term “illegal immigrant.” And I remember they stopped me in front of everyone and said, “You know, we actually personally find this offensive to call us that.” And they weren’t angry, they weren’t mean, they were just informing me. It was an embarrassing moment for myself at the time because I was like, “Oh my goodness, the last thing I wanted to do was come in here and offend a bunch of people, you know? I’m trying to show up in solidarity.” And so that was a big lesson for me. This happened more than—it happened probably about 20, more than 20 years ago.
But it was a big lesson to me. And I think—and I think you’ll appreciate this, Bob, as a good libertarian—to me, it matters. I want to call people—I want to respect people and I want to call people what they call themselves, right? Now, if they call themselves a Nobel Peace Prize and they’re a warmonger, okay, now you’re taking it too far. But for the most part, you know, if we’re going to approach people in a humane way, I want to do it in a language that they’re much more comfortable with, that’s not offending to them. So I always use “undocumented immigrant.” And like I said, I think using “illegal immigrant” is a way of trying to get away of actually being quite vindictive towards a particular people.
Bob Zadek: Mitch, I can’t help this. I have to go off-message because I started to smile when you said people are allowed to self-identify, but you might not buy in if it’s clearly wrong. And you made reference to somebody being a warmonger but saying they have the Nobel Peace Prize. The last American to qualify was former President Obama, who was a warmonger who got the Nobel Peace Prize. I apologize, I couldn’t resist. That was off-message.
Mitch Jeserich: Well, how about Henry Kissinger? I mean, you’re absolutely right. I couldn’t agree with you more.
Bob Zadek: Sorry, I was biting my tongue, I couldn’t stop. Now, Mitch, you and I are in some ways—probably fewer than most people would appreciate—might be on very opposite ends of certain political issues. But on immigration, we are brothers in a way. But tell us, because you are as good a spokesman for the progressives, for the left, that I could find, which of course is why we are talking this morning. So tell us in your words—you’re not speaking for a whole bunch of people, just for yourself—summarize for us what you would endorse as a sensible immigration policy. What would be the bullet points of your national policy on immigration?
The Case for Amnesty [08:14]
Mitch Jeserich: I guess my number one and biggest bullet point is I think I would give amnesty to the people that are here now. If that’s 11 million, who knows how many actual undocumented immigrants are here right now. Amnesty has become this really bad word, but it’s a word that was used freely by Ronald Reagan in the 1980s, the last time we had a huge overhaul of the immigration system. These to me are—these are neighbors. These are people I grew up with, right? I mean, I’ve been saying 11 million undocumented immigrants for ever since I’ve been paying attention to this issue 25 years ago, right? I mean, these are people in our own neighborhood, these are neighbors, these are people I grew up with. I mean, after a while, it’s like, you know, boots on the ground or facts on the ground or whatever the statement is, is this is how it is now. This is how our communities are. These people are our neighbors, these people are our friends, these people are our co-workers. We rely on them, they rely on us. It’s part of our community.
You know, I think about—I remember last year sometime, the BBC did a story of where there was an immigration raid, and I forget where, but it wasn’t in a typical place. I think it was like Pennsylvania or something, not a typical place you think a lot about immigration enforcement, immigration issues. And when the raid happened, the people started speaking up. These were Trump supporters—this area voted for Trump—but people started speaking up and saying, “Well, wait, I didn’t mean that person. That’s not what I meant,” right? Because the whole debate now has been framed, especially since the last presidential election, as criminals and drug dealers and all these things. And there’s a very small portion of that that’s true, but that’s kind of true for just about any group of people you want to talk about. But a huge vast majority, I’d say 99% of the people, are just looking for…
Bob Zadek: And Mitch, I agree with you. I agree with you, and I can’t for the life of me understand how amnesty got, if you will, a bad rap. Amnesty is a sensible, humane governmental policy. And just to—if anybody out there is having a bit of a negative reaction to amnesty, to in effect “rewarding” people who have broken the law, let me just put amnesty in a context.
Remember Prohibition? I referred to that earlier. Well, we had an awful lot of people who were felons. And then we have the 19th Amendment that repeals Prohibition, and now it becomes legal. But it doesn’t mean that everybody who broke the law before the Volstead Act, before Prohibition was repealed, they still were felons. But there was nobody in this country who felt, “Let’s continue to prosecute those people who committed a felony when it was a felony.” So amnesty, of course, made sense because the crime was a non-crime in the eyes of most people.
Second of all, in tax policy, taxing authorities at the state and local level, and sometimes at the federal level, will recognize there have been a lot of tax cheats. And they can’t find them; it’s too expensive. So they announce, “Okay, everybody who cheated on their taxes, we will give you amnesty. No fines, no jail. All we want is: confess and pay the taxes, and you’ve got a clean slate.” That’s tax amnesty. It’s a perfectly appropriate government policy. It’s adopted from time to time, and no American has spoken out in protest, “No, throw them in the slammer.”
So amnesty is a perfectly sensible governmental policy to accomplish an important human and governmental goal. And it’s only when it’s used in the context of immigration, with the pre-existing animus towards immigrants, that amnesty becomes a negative word. But it has been part of us since the Bible, and it’s an accepted humane policy. So anybody who protests about amnesty per se, I just say I can’t possibly agree. So you’re right on focusing on that issue. It’s a really important issue, and I wanted to put it in context.
Now, Mitch, we’re going to go to a quick one-minute break. This is Bob Zadek talking to Mitch Jeserich. We are talking about immigration in California, the war right now in the courts—hopefully it doesn’t become a hot war—between California and the federal government. We don’t want to see tanks rolling down Van Ness Avenue in San Francisco; I sure don’t. We hope it will not escalate. I’ll be back in one really short minute. 424-BOB-SHOW to join my conversation with Mitch.
[Break]
Public Opinion and the Data Gap [12:11]
Bob Zadek: Welcome back to the Bob Zadek Show, show constantly of ideas, never of attitude. This morning we are discussing the hot-button issue of immigration in the enforcement of the age of Trump, with somewhat of an emphasis on the West Coast and on California because Trump has declared litigation war against the state of California. California has declared litigation war against the federal government. The courts will sort all this stuff out. What an absurd way to make policy by having the judges decide who’s right, a state or the federal government. How depressing that we’ve come to that, but we have nevertheless. To join us and sort all this stuff out, I’m happy to welcome Mitch Jeserich. Mitch is the host of Letters and Politics, a wonderful experience to listen to Mitch’s show on KPFA 94.1 in the Bay Area. Mitch, what time is your show on, and can listeners subscribe to a podcast?
Mitch Jeserich: Yes, you can. You can find it on iTunes. You can also get the podcast straight from our website, which is kpfa.org, where you can access our show anytime. But if you’d like to hear it on radio, because some of us still love radio, you can do so at 10:00 a.m. Monday through Thursdays on 94.1 FM if you are in the Bay Area.
Bob Zadek: And if you’re listening to the show and are a little bit shy about calling in, tweets are always welcome @RZadek. You’ll find the pinned posting about this morning’s show and just post a tweet there, and if it adds to the conversation, we’d be happy to share it with our listening audience.
Mitch, one of the most troublesome areas about the immigration discussion—and everybody, everybody has an opinion on this subject. But the problem is opinions are formed in one or the other of two ways: either somebody, an opinion holder, studies the data, understands the data, has analyzed the data and reaches an informed, data-driven opinion; or it is an emotional reaction. And if it’s an emotional reaction, then the person holding the opinion has probably acquired that opinion from some public influencer—a radio host, a television host, a commentator, a public figure. So it’s an acquired opinion rather than independently developed. And the troubling part of it is that most of the opinion on immigration is not data-driven. So when you see a poll on how people feel about immigration, it—and I’ve said this before on the show—it’s really a poll on what media people listen to or read, not on what they think, because that’s what affects what they think. So the troubling part of it is there is so much false data out there in terms of the economic effect upon immigration that just mucks up the public conversation.
Mitch Jeserich: Yeah. And you know what else I would say, Bob? And I think this is an important point, and you may agree or you may disagree, and I’m happy to explore it. But I think the way that we have framed immigration is the wrong lens to be looking at all of this. I don’t—in my support for amnesty of everyone who is here, and I’ll be the first to say there’ll be some who will be given amnesty who probably shouldn’t have it, right? But that happens whenever you talk about a large—doing anything with a large group of people, right? No matter what it is, there’s fraud, there’s all these things. But still, the vast majority…