Jawboning and the First Amendment

 “[J]awboning as a species of First Amendment violation is alive and well.”

https://scholarship.law.ufl.edu/cgi/viewcontent.cgi?article=2317&context=facultypub&fbclid=IwZnRzaANp4CZleHRuA2FlbQIxMQABHo47SB5qs2mYPccmgh2o7Pr_-bTJj9ZYWfkMsiHcwnerR7lINxgbwQ3B9y8X_aem_8m7KDMQGM4W_ITUtMdi7pg

The Argument Against ICE Detainers: Why They're Illegal

 

The Argument Against ICE Detainers in CA: Why They're Illegal

(This is not legal advice, just general information.)

1. The ICE Detainer Violates the Fourth Amendment (Unlawful Seizure)

• Defense Argument:
  An ICE detainer is an administrative request, not backed by a judicial warrant or independent probable cause. Under the Fourth Amendment, the government cannot detain someone without a warrant or probable cause. By honoring an ICE detainer, local law enforcement effectively detains a person beyond their legal release time, violating their rights against unreasonable seizure.

  • In Miranda-Olivares v. Clackamas County, 2014 WL 1414305 (D. Or. Apr. 11, 2014), the court ruled that holding someone on an ICE detainer, without independent probable cause, violates the Fourth Amendment.

  • Similarly, Galarza v. Szalczyk, 745 F.3d 634 (3d Cir. 2014), found that detaining someone at the request of ICE without judicial review violates the Constitution, and local officers could be held liable.

• Counterargument (Pro ICE):
  ICE could argue that their detainers are simply requests and not mandatory orders. They may contend that local law enforcement is voluntary in complying with detainers. Since these are not formal arrest warrants, ICE might assert that they are acting within their right to request local cooperation.

  • Rebuttal: However, in Miranda-Olivares, the court specifically held that even voluntary compliance with ICE detainers, when unsupported by probable cause or a judicial warrant, leads to unlawful detention. Local agencies risk liability for constitutional violations by detaining individuals without a proper legal basis.

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2. California’s SB 54 Prohibits Local Detention on ICE Holds

• Defense Argument:
  Under California’s SB 54 (California Values Act), local law enforcement cannot detain someone solely based on an ICE detainer. SB 54 limits state and local cooperation with federal immigration enforcement, preventing local officers from holding someone for ICE unless the person has been convicted of a serious or violent felony.

  • The California Gov’t Code § 7284.6(a)(1) provides that local law enforcement must not detain individuals for immigration violations unless under specific, limited circumstances. In People ex rel. Becerra v. Superior Court (Mendoza), 29 Cal. App. 5th 486 (2018), the court upheld SB 54, confirming that it restricts local officers from detaining individuals on ICE holds absent narrow exceptions.

• Counterargument (Pro ICE):
  ICE could argue that federal law supersedes state law when it comes to immigration enforcement. Since immigration is a federal matter, they may assert that local authorities are required to comply with detainer requests under the Supremacy Clause (U.S. Const. art. VI, cl. 2).

  • Rebuttal: While federal law does govern immigration, it does not compel local law enforcement to act on behalf of federal agencies. The Tenth Amendment prohibits the federal government from commanding local law enforcement to enforce federal laws, including immigration. In Gonzalez v. ICE, 975 F.3d 788 (9th Cir. 2020), the Ninth Circuit upheld California's SB 54, affirming that California has the right to limit local cooperation with federal immigration enforcement.

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3. Separation of Powers: ICE Oversteps Federal Authority

• Defense Argument:
  The separation of powers doctrine prohibits federal agencies from compelling state and local agencies to enforce federal laws. In this case, ICE is attempting to commandeer local law enforcement to enforce federal immigration law, which violates the Tenth Amendment.

  • Printz v. United States, 521 U.S. 898 (1997), made clear that the federal government cannot compel state officers to execute federal laws, including immigration enforcement.

  • In Gonzalez v. ICE, 975 F.3d 788 (9th Cir. 2020), the Ninth Circuit held that states like California have the right to restrict local involvement in federal immigration enforcement, which aligns with the Tenth Amendment’s anti-commandeering principle.

• Counterargument (Pro ICE):
  ICE might argue that immigration enforcement falls under federal jurisdiction as per the Supremacy Clause, and therefore, states cannot opt out of cooperating with ICE. They may point to cases like Arizona v. United States, 567 U.S. 387 (2012), where the Court upheld certain federal immigration enforcement measures, asserting federal primacy.

  • Rebuttal: Arizona v. United States involved a state law attempting to enforce federal immigration law, whereas here, California is limiting state involvement. This is a clear state sovereignty issue, where California has the right to restrict local participation in federal immigration enforcement under the Tenth Amendment. The Printz case and subsequent rulings reinforce that the federal government cannot force states to take on federal immigration duties.

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4. ICE Detainers and Local Law Enforcement Liability

• Defense Argument:
  By honoring ICE detainers, local law enforcement is potentially subjecting themselves to liability for unlawful detention, as these detainers do not have the force of law. Detaining someone based solely on an ICE request, without judicial oversight, risks violating individuals' Fourth Amendment rights and exposes local agencies to lawsuits for false imprisonment and constitutional violations.

  • Miranda-Olivares v. Clackamas County, 2014 WL 1414305 (D. Or. Apr. 11, 2014): A federal court held that local agencies violated the Fourth Amendment by holding individuals based on ICE detainers without probable cause.

  • Galarza v. Szalczyk, 745 F.3d 634 (3d Cir. 2014): The court found local law enforcement liable for holding an individual based on an ICE detainer without probable cause.

• Counterargument (Pro ICE):
  ICE may argue that the voluntary nature of the detainer means that local law enforcement is not required to comply, and therefore cannot be liable for honoring the request. ICE could contend that any liability rests with local agencies, not ICE itself.

  • Rebuttal: Even if the detainers are voluntary, they induce unlawful detention, and local officers are at risk of liability for false imprisonment. Local agencies cannot simply claim immunity when they violate constitutional protections by complying with ICE detainers.

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Why ICE Detainers Are Ultimately Illegal

• Unconstitutional: ICE detainers are not supported by judicial oversight or probable cause, making them an unlawful seizure under the Fourth Amendment.

• State Law Violation: California’s SB 54 clearly prohibits local law enforcement from honoring ICE detainers unless strict exceptions apply. The Supremacy Clause argument fails because California has a constitutional right to limit its cooperation with federal immigration enforcement under the Tenth Amendment.

• Federal Overreach: ICE’s efforts to compel local agencies to act on federal immigration law infringe upon the separation of powers between state and federal governments. This violates California’s sovereignty and the anti-commandeering principle articulated in Printz v. United States.

• Liability Risk: Local agencies face significant liability for unlawful detention by honoring ICE detainers that lack judicial oversight or probable cause, putting both the individuals detained and the local agencies at risk.

In conclusion, ICE detainers are illegal, both constitutionally and under state law. They violate the Fourth Amendment, breach California's SB 54, and force local agencies into unconstitutional cooperation with federal immigration law enforcement. Courts have consistently ruled that honoring such detainers exposes local agencies to liability and violates individuals' constitutional rights.

From Foreign Eyes

From Foreign Eyes: The United States’ Rapid Transformation Into an Unrecognizable Landscape

Since returning to Taiwan on October 7, 2024, and spending a year here, I have repeatedly heard that people no longer want anything to do with visiting the United States, let alone moving there, as there are many other places in the world that are far more appealing.

I’ve had countless conversations with clients, students, friends, and acquaintances from Taiwan and around the world. 

One theme comes up repeatedly: Their fear is rooted in a wide range of serious issues that go far beyond simple perception. Based on what I’ve heard and observed, here’s a summary of the most common and urgent concerns.

First and foremost, gun violence in the U.S. is and always has been at crisis levels. Mass shootings happen frequently, in a way historically unmatched by any other country. The U.S. leads the world in civilian gun ownership, including easy access to assault-style weapons. 

Gun laws are fragmented and weak, varying widely by state with little consistent enforcement. This creates a chaotic environment where violence can erupt unpredictably. 

Cities like Los Angeles have declared states of emergency largely due to the authoritarian nature of aggressive, Gestapo-like ICE crackdowns. 

Many neighborhoods feel unsafe, and police forces are overwhelmed, inconsistent, or absent in critical areas.

Adding to the instability, armed civilian militias and vigilante groups have become more visible, further escalating tensions.

Alongside this is a growing sense of authoritarianism and erosion of civil liberties in general.

Laws have been passed that criminalize protests, suppress dissent, and restrict press freedoms. Surveillance of activists and minority communities has increased dramatically, creating an atmosphere of fear and distrust. 

Constitutional rights, which are supposed to protect everyone equally, are increasingly ignored or selectively enforced, especially for racial minorities, immigrants, and political dissenters. 

This legal breakdown is deepened by ongoing police brutality and systemic racism. High-profile cases of police violence rarely result in accountability, and racial profiling remains widespread. 

Immigration enforcement disproportionately targets Black, Brown, and Indigenous communities, feeding a cycle of discrimination and marginalization. Hate crimes continue to rise, with little effective response from the authorities.

LGBTQ+ communities face particularly harsh attacks, with many states passing bans on gender-affirming healthcare for both youth and adults. 

Restrictions on public expression, including bans on drag shows and pride events, have become common. These policies, combined with a surge in hate crimes, create a hostile and dangerous environment for the LGBTQ community. 

Many I’ve talked with here report family members and friends are living in fear simply for being themselves.

In other conversations I have people echo the education system is not spared either. Across many states, political censorship and book bans are reshaping public schools. Discussions about race, gender, and history are increasingly criminalized or heavily restricted, with teachers punished or even fired for addressing these topics honestly. 

At the same time, rising tuition costs, new education-related taxes, and public school defunding are making quality education less accessible to many.

Economically, the U.S. is often described as prohibitively expensive, especially for travelers and immigrants. The costs of travel, housing, healthcare, and everyday essentials are among the highest globally. 

Confusing tipping customs and hidden sales taxes (especially to many from Asian cultures) add to financial frustration. 

Despite being one of the wealthiest countries, extreme inequality is glaringly visible, with decaying public infrastructure and widespread poverty standing in stark contrast to affluent areas.

Healthcare remains a major concern, as the U.S. lacks universal coverage. Basic medical treatment can lead to devastating bills, forcing many into bankruptcy, while healthcare costs continue to rise.

Worker protections are weak, with minimal paid leave and poor work-life balance contributing to high stress and burnout. Social safety nets for vulnerable populations are inadequate or nonexistent.

Infrastructure problems further complicate daily life and travel. Outside major metropolitan areas, public transportation is unreliable or nonexistent, especially compared to those areas in more developed countries, making car ownership a necessity. 

Affordable lodging is scarce, and public spaces are often unsafe or poorly maintained, making travel both costly and isolating.

Health outcomes are also alarming. The prevalence of ultra-processed foods, often the cheapest and most available option, has contributed to one of the highest obesity rates in the world. 

This, combined with poverty and limited access to fresh, healthy food, has led to worsening public health, especially in marginalized communities, and especially since food prices continue to rise.

Finally, all these issues are compounded by the obvious extreme political division and social unrest.

Many have told me the U.S. is so deeply polarized now there are growing fears of even more civil conflict or even complete political fragmentation. Most say the government is moving toward authoritarianism, with illegal attacks on minorities, activists, and dissenters increasing. 

Hate groups and extremist movements continue to rise, adding to the instability.

For many people I’ve met here in Taiwan, the U.S. no longer feels safe, welcoming, or free, regardless of location.

GOP Says Any Deal Needs Teeth

Republicans see the White House breaking appropriations law. Any deal must include enforcement, or it's political malpractice. 

Appropriations rupture exposes the constitutional stakes

DANIEL SCHUMAN AND CHRIS NEHLS

The Quiet Shutdown Becomes Loud

Full Stop

Illegally shuttering agencies, firing regulators without cause, seizing the power of the purse from Congress, engaging in continuous unconstitutional actions, enriching himself through corruption, and deploying the military against American civilians are all undeniable impeachable offenses. Speaker Johnson’s complete abdication of his oath to defend the Constitution only deepens the crisis. Cowardice, greed, or complicity offer no excuse for the silence and inaction of those who should be defending the rule of law. Any resolution to end the shutdown must include unyielding safeguards against authoritarianism. Full stop.

Textbook Examples of Prior Restraint — Clear First Amendment Violations

Textbook Examples of Prior Restraint — Clear First Amendment Violations 

Dear David Sanger,

Instead of relying on what “news organizations consider,” report it straight: the proposed rules set out by the Department of Defense under Secretary Pete Hegseth seeking to establish new constraints on journalists are *unconstitutional*. Prior restraint here is as clear a violation of the First Amendment as President Donald J. Trump Trump & Federal Communications Commission Chair Brendan Carr using government power to coerce networks into censoring disfavored speech “the easy way, or the hard way.” 

~Alexander B. Howard 

https://www.nytimes.com/2025/09/24/us/politics/pentagon-reporters.html

The Dissent's Warning

The Dissent's Warning

PART I

Following "Operation At Large," a federal district court in Los Angeles issued a temporary injunction to stop the government's immigration enforcement raids. The court's order was based on its finding of a "mountain of evidence" that armed agents were making "detentive stops" without the required reasonable suspicion. The court found that agents were relying on a problematic combination of factors, including:

* Apparent race or ethnicity.

* Speaking Spanish or English with an accent.

* The type of location (e.g., car washes, bus stops).

* The type of work the person appeared to be doing (e.g., day labor).

The district court ruled that using these factors alone likely violates the Fourth Amendment, which protects against unreasonable searches and seizures. The government appealed this injunction, arguing it was an overly broad "straitjacket" on their ability to enforce immigration laws.

This legal battle continued, with the U.S. Supreme Court ultimately siding with the government. In a 6-3 decision, the Supreme Court lifted the temporary injunction, allowing the government to resume its "roving patrols" and sweeps. The majority opinion argued that the factors cited by the lower court could, when considered as part of the "totality of the circumstances," contribute to a finding of reasonable suspicion. The three dissenting justices, however, wrote that the ruling effectively greenlit racial profiling and allowed for the seizure of people based on their looks, accents, and manual labor jobs.

The case has been controversial, with opponents arguing that the government's tactics have swept up and harmed U.S. citizens and others lawfully in the country.

PART II

Here is a more expanded explanation of the key arguments and reasoning.

Fourth Amendment and Reasonable Suspicion:

The core legal dispute centers on the Fourth Amendment's requirement of "reasonable suspicion" for a non-consensual stop or seizure. The document argues that the government's actions violated this principle by relying on a set of factors that are not sufficiently "particularized" to any single person.

* The "Hunch" vs. "Articulable Facts" Standard: 

The dissent contrasts the government's approach with the legal standard established in cases like Terry v. Ohio (392 U.S. 1). A lawful stop requires "specific articulable facts" that lead a reasonable officer to suspect a person is involved in criminal activity. The government, however, used broad generalizations—a person's appearance, language, and work location—as a substitute for this required specificity. The dissent characterizes this as an "inchoate and unparticularized suspicion or 'hunch,'" which is constitutionally insufficient.

* The "Large Category of Innocent People" Problem: 

A central theme of the legal reasoning is that a profiling system that ensnares a vast number of law-abiding citizens is inherently unconstitutional. The dissent highlights that the factors used by agents—being "Latino," speaking "Spanish," working at a "car wash"—apply to a huge portion of the Los Angeles population, including millions of U.S. citizens and legal residents. This lack of a particularized basis for suspicion is seen as a direct violation of the principles laid out in Reid v. Georgia and United States v. Brignoni-Ponce. The argument is that if these factors alone were sufficient, the government could justify seizing almost anyone in a major metropolitan area with a large Latino population, which would undermine the fundamental purpose of the Fourth Amendment to prevent "arbitrary and oppressive interference" with personal liberty.

Standing for Injunctive Relief:

The debate over legal "standing" is a critical procedural barrier the plaintiffs had to overcome. Standing requires a plaintiff to show a personal stake in the outcome, which includes a likelihood of future harm.

* Distinguishing the Lyons Precedent: 

The document's reasoning for why the plaintiffs have standing hinges on a key distinction from Los Angeles v. Lyons. In Lyons, the Court found no standing because the future harm was speculative—the plaintiff would have to be pulled over again and an officer would have to illegally apply a chokehold, an action not officially sanctioned by the department. In contrast, the Los Angeles plaintiffs faced a "real and immediate threat" because the raids were a systematic, officially sanctioned operation. The government itself had declared its intent to continue these raids on the same types of locations where the plaintiffs were working. The dissent argues that this pattern of conduct makes future harm not just possible, but "likely."

* The "Fantasy" of Individualized Exemption: 

The reasoning for the district-wide injunction is directly tied to the nature of the government's conduct. The court found that agents "seize first and ask questions later," often using force before even a single question is posed. Given this pattern, it would be a "fantasy" to expect agents to pause a raid to check if an individual is one of the named plaintiffs. Therefore, a broad injunction was deemed the only effective way to prevent the illegal seizures from continuing against the specific plaintiffs and the class they represent. This reasoning is an application of the "complete relief" principle outlined in cases like Trump v. CASA, Inc., justifying a broader injunction when a narrower one would be ineffective.