Source Collect: Violence in the Administrative State

This podcast episode accompanies the article from Professor Chertoff: Violence in the Administrative States.

Transcript

SPEAKERS

Host: Juliette Draper
Guest/Author: Professor Emily R. Chertoff

Judge Thelton E. Henderson  00:00

“And that's what sustains our system: is that, having one's day in court, feeling you were heard. And even though you don't agree with the ruling, you feel you've been through a fair process.”[1]

Juliette Draper  00:14

This is “Source Collect:” the podcast of the California Law Review (CLR). Here at CLR, we strive to collect sources that underscore how law shapes society and how society shapes the law. The goal of our podcast is to provide an accessible and thought-provoking overview of the scholarship we publish. In today's episode, we will be discussing Violence in the Administrative State, a piece by Emily Chertoff, Associate Professor of Law at Georgetown Law.

Professor Chertoff, thank you so much for taking the time to talk with me today about your article.

Emily Chertoff  00:52

Thank you, Juliette. I am very excited to talk about this article, particularly in this current moment.

Juliette Draper  00:58

Amazing and so what motivated you to write your article, Violence in the Administrative State.

Emily Chertoff  01:01

I worked in ICE detention as a defense attorney within a couple of years of graduating from law school. So, I worked at an organization called Immigrant Defenders in Southern California. I primarily represented people who were detained at the Adelanto Ice Processing Center, which is about two hours outside of LA. And one thing that I noticed really quickly when working in detention, and that a lot of my colleagues and I would talk about, was that there was a massive discrepancy between the administrative law that was on the books and meant to regulate the facility and the reality of what we would see in terms of practice. So, to take a really concrete example, we would file parole requests for people who we had, clients who we had who were detained. These are requests through ICE’s own internal administrative process to get people out of detention, usually for a humanitarian reason, so frequently they’re medical requests—the person has, like, a serious disability or medical issue. And so, you're supposed to be able to submit these requests, and you get some kind of determination, there's a form that they fill out, and they're supposed to give you a reason. So, this is kind of like a conventional administrative law process. But what you'd find is that you'd submit the request and you'd be waiting years to hear anything, if you heard anything at all, right? And so, there were so many things like this, where you had a process on the books and it looked nothing like what was actually happening in the facility. And so this is like a classic problem in law, like legal realism exists as a kind of school of thought, partly because legal scholars realized there was a discrepancy between law in the books and law in action, but I was really interested in the idea that there might be something specific about this context of detention and of the use of force that might affect how the law was being applied. And what I saw when I sort of started doing the research for this article, which was synthetic of a lot of qualitative scholarship on how different kinds of like force agencies—agencies that use physical coercion—actually apply the law, is that through these regularities in terms of the discrepancy between the law on the books and the law in action with these agencies. So that was kind of the motivation for the paper.

Juliette Draper  03:20

And you note this in a footnote in your article to underscore how important that work was to your perspective. And can you just speak on that real quick, like for you as an academic, why maybe having that personal experience is so important to writing scholarship?

Emily Chertoff  03:34

When it comes to these environments like immigration detention, at a certain level, there is no substitute for practicing. Just because, from a practical perspective, your ability to do like—let's say you want to do field work as a PhD, it is not going to be easy to get access to that context. ICE is notoriously difficult to get access to. There's a little bit of work, really good work, by sociologists on CBP and similar agencies. But you can just see like getting into this context and getting embedded in these agencies, and understanding the environment is super difficult. And so I do think that on some level, there's no substitute for having had that experience as a practitioner in the facility, in that environment, even if it also means that you have to think a little bit about the biases and predispositions that you then bring to your scholarship, because that's the context that you were coming from.

Juliette Draper  04:36

And so before we dive into the meat of your article, just to kind of frame the discussion a bit more, can you elaborate, like on the necessity of emphasizing the experiences of poor people of color and non-citizens inside and outside of the US borders when having these conversations? Obviously, when

Emily Chertoff  04:51

Obviously, when you're talking about something like immigration enforcement, it clearly does have—not just disproportionate impact on certain group of people, but, there's a way in which like cast specifically these kind of like structural social disabilities and forms of cultural stigma that people experience, that those things are reinforced by the law. And so, you're not really going to understand those dynamics unless you look at how law is applied to those communities

Juliette Draper  05:20

1,000% that's a great point and a great way to dive into the article. So, kind of, in the beginning of the piece, you talk about how after the 1960s, the field of Administrative Law coalesced around a streamlined model of the administrative state. Can you elaborate on these assumptions inherent in this conception of the administrative state?

Emily Chertoff  05:41

Yeah, sure. So, there's this huge tradition in administrative law. And even, like the foundational tradition and scholarship on administrative law is to look at how law is actually applied. Like the first scholars to write about administrative law, they were looking at administrative law as applied public law. So, they were saying, well, what are agencies actually doing when they apply the law? What is the government actually doing when it applies the law? And so, in a way, that's like, really similar to the conception of administrative law that's kind of embedded in my article. But that conception changes over time, and I think there are a few reasons for that. I mean, the APA did kind of put forward this transubstantive model of law. There's an idea that you have, like a kind of limited set of conceptual categories that cut across all the agencies in the field, even though we also acknowledge there are all these things that aren't included in those categories that don't totally fit in the framework the APA sets up there. I think also is a political story behind this, just because the administrative state has always been the object of some political controversy, but I do think its salience and political conflict began to change, potentially around the 1960s, there was more of like a kind of public appeal on the conservative side to the idea that the administrative state was something that, you know, infringes on people's civil liberties and on their freedom, like economic freedom, and so it was something that conservatives explicitly decided that they would kind of combat and contest. And there was a history to that, like there was an opposition to administrative agencies that kind of led to the creation of the APA and the desire to constrain them. But I do think that some of that political conflict, and then the reaction to that conflict by liberals, led to a kind of stylized view of the administrative state. And so to just be very clear and specific about what exactly the kind of basic components of that view are: We see administrative agencies as bureaucracies, right, in a Weberian sense. So they are, you know, full of administrators who are professionals, who got their positions through merit, who are paid salaries, and whose basic function is to rationally process information according to these kind of deliberately set out enumerated standards that are embodied in things like regulations and guidance and make reasoned decisions based on evidence about how those standards should apply, so that model conditions everything from what administrative law looks like, the actual form that like the formal law takes to also how we think about these agencies in terms of who's employed in them and what their roles

Juliette Draper  08:26

Amazing. That makes a lot of sense. So when we think about that conception of the administrative state, you present a very different image of it in your article, talking about present day.

Emily Chertoff  08:36

Yeah, so the particular thing that I was interested in is the idea that in these agencies that use physical force as part of the routine responsibilities, that there might actually be something about their organization at the lowest levels of the agency that's different, that doesn't look like a bureaucracy. And again, I had this intuition, partly because I had seen some things in my practice experience that made me think: hey, this doesn't look like a bureaucracy in a lot of different ways, even though there are clearly aspects of it that seem to be taken from bureaucracy, or they're being told what to do by a bureaucracy, or there's kind of bureaucratic-looking administrative law that are supposed to apply to them. But, the question is, is that just something about ICE or is that also something about this bigger category of agencies? And that was what set me down this road of looking at all of this scholarship on police, of which there's decades and decades, lots of work on police organizations and the kind of organizational pathologies that they display, a little bit of work on immigration enforcement, and also a little bit of work on the military. But that work is very, very helpful and interesting to understand what might make these agencies distinctive, and what you do find, and I argue in the article, and I hope people find it persuasive, is that the form of organization is distinctive, that there's a distinctive institutional culture that arises at the lowest level of these agencies that does not look like a bureaucratic culture. And that ultimately, this distinctive institutional culture makes conventional administrative well fail. Basically, it's not well suited to the organizational culture and context at the lowest level of these agencies.

Juliette Draper  10:19

And given that this organizational structure makes administrative law fail at those levels, you also noted that that same bureaucratic administrative law can also play a role in concealing, legitimating, and even accelerating the use of arbitrary violence that can occur at those levels. Can you elaborate on that and on the like feedback loop of organizational pathologies, like a term that you noted at one point in the article that may result from this?

Emily Chertoff  10:45

Yeah. So I think there are different ways that this works out. And so, I'll take an example from the research that I synthesized, then an example from the article a little bit more directly about immigration enforcement. So, when you talk about organizational pathologies, there's a lot of scholarship about policing and the idea that you can get kind of pathological feedback loops within police organizations that make it really, really difficult to come back in and kind of assert standards in the organization. So, there's a lot of research on kind of, like work groups of you know, street level police and their kind of culture and the bonds that they form. And what this research has found is that very frequently, a perception develops within these work groups that there's like a significant risk that people are under threat, and that the way to react to this is with certain uses of force that become normalized. And so what you see in some of this research is that we have, like a set of rules, and there are constitutional standards for appropriate uses of force and when they become unconstitutional, but people actually develop a view of what is an appropriate use of force that exceeds those constitutional standards, partly because of the institutional view that they're working in, like the kind of environment that they perceive themselves to be in, the threats that they perceive and then also the fact that they're kind of in this isolated work group, and they reinforce each other's beliefs. And there's an organizational, cultural component to that as well. So, that's an example where you can have formal law, like you can have a policy on use of force, saying, this is an appropriate use of force and this isn't, and here's where the boundary is, and here's what you have to look for. But if you have that policy, and then you have the police agency relying on that policy and litigation and saying, hey, here's our rules for use of force. And then, you have views developing within sectors of the police department that actually view the appropriate use of force as something different than that—in litigation, it may be that a court is not going to develop an accurate view of what the agency's use of force is because of this paper policy. And so, that's really going to, like, limit and disable this kind of, like reviewing oversight role that courts are supposed to have when it comes to police uses of force. We see something similar with the example of immigration enforcement. If you look at the way that ICE has kind of used its parole policy—and the article talks about this a little bit in detail—the way that it's used its parole policy to say: hey, here's how we're handling these parole applications that I talked about earlier, versus the reality of what they're doing. The paper policy actually allows them to claim that they're following certain standards in court, and then, because of that, judicial review can't play a role in actually overseeing and kind of limiting what's happening within the agency.

Juliette Draper  13:44

You talked about how like, there seems to be a mismatch between the actual danger that ICE officials may confront at the border and the dangers that ICE officials perceive. And I guess we could have numbers, statistics on the low-crime rates and how the majority of people in ICE detentions have no criminal records, and those at the top of the bureaucracy can see those numbers, maybe develop policies from that that call for like low force to be used, But then you noted how, in some of your sources, individuals said that they would rather be working in Immigration Crime Prevention because they view working in the detention centers as involving more caretaking responsibilities. So, any thoughts on that, on how these force agencies may distort these threats?

Emily Chertoff  14:33

I think that this—so I think that you're getting at an issue that's really important and interesting and complicated, which is the question of why within these agencies—and this is true within police agencies, there's really good research on this, I think it's true within ICE—the question is, why do people develop a perception that they're at risk? Okay, and then there's a related question of, how does their view of their role shape the kinds of work they think that they should be doing? And I actually do— like your intuition, I think, is that those two things are related. And I do think that there's a relationship between those things. And there are different answers to this question. But, I think two answers are worth flagging. First of all, there is something about the environment, both in terms of the messaging that comes from higher in the agency, from the top of the agency, the ways that people talk about the work within these agencies at the kind of frontline level, and then also people's perception of their environment that makes them think my work is risky, even if we know statistically that's not true. And so, I think it's, like, important, actually, to take kind of, like, a charitable and understanding view of how this might happen. There's a big debate about, like, do people come in with views about force and like, attitudes about, you know, using certain kinds of sanctions, different personality traits that may make them more likely to be attracted to these jobs? All of that may be true, but the point here is that there are also things about the institutional environment—that come from the top of the agency, that come from kind of culture within the agency and that come externally—that shape people's perceptions of risk. So, I do think that that's an important thing that's happening here. I think it's also the case that people need to justify—they need to have answers for themselves about why they do what they do. So, if you're in a role where you're detaining people, you need to be able to give yourself an answer about why you do that that's congruent with other things you may believe about yourself, like, I'm a good person, I treat people fairly, right? So again, if you think this is a risky environment, that's like a narrative or a belief that helps you to fit together all of those things about who you are. So that's it for like the kind of perception of risk. Now, how does this relate to this idea of what people see their job as being? I do think that people who go work at ICE want to be law enforcement officers in many cases, and people have different motivations for doing that, for sure, but it's like a law enforcement role, that's how it's kind of framed. And there is this sense that if what you're doing is like taking care of people in detention and you're feeding them and all of these things, that's not law enforcement work. They also develop beliefs about what is my proper role, what is needed in the community, and some of those also have to do with how ICE is framing that employment for people, and how they kind of say to people, this is who we're hiring, this is the nature of the role. They train people to think about it as enforcement work and so on.

Juliette Draper  17:53

And in the case study portion of the article, you talked a bit about like the ICE’s union, and the role that the union may play in shaping that hierarchy. Could you touch on that a bit?

Emily Chertoff  18:01

Yeah, so ICE’s union, historically has been very politically active and very vocal publicly about ICE’s role. And pretty consistently what it has done—and again, I think it is fair to say that it reflects the views of like a significant number of members, although probably not every single person who's a member, right? But it is pretty reflective of the membership. The union has consistently pushed for ICE agents to do more kind of street-level-policing-type enforcement work, to be out in the field, as they call it, making arrests and, you know, bringing people to detention—and not to be doing that work of either kind of like administrative, back-end housekeeping—like, if you actually go to an ICE office, there are a lot of people on computers, monitoring people at check-ins and things like that. That's one side of it, or this work that involves, kind of the day to day care, taking in the detention facility. They want their members to be doing less of that work and more enforcement work in the field—nd that is probably reflective of demand within the membership and a sense of that is their appropriate role.

Juliette Draper  19:18

Okay, fascinating, and thinking about unions too—and how they're being treated by the administration—currently, recently Homeland Security ended TSA’s collective- bargaining agreement in an effort that some say was to dismantle union protections. So, I'm curious how you—whether you think that that could happen to ICE or if we'll maybe see in this administration a different treatment of these agencies.

Emily Chertoff  19:42

So, the Biden Administration terminated ICE’s union. So I like, I'm actually not sure what the future of the ICE union is, and so I do think I would expect the Trump administration to be much more solicitous of the views of rank-and-file ICE agents. In fact, I think that a lot of what they're talking about doing with immigration enforcement is possible because there's pretty broad buy-in within ICE that, like a lot of the policies are appropriate and what they should be doing. So, I think that that's very important. I don't know if the specific form of—kind of unionized labor that has historically been part of the way that administrations have interacted with ICE whether that will still be part of things, but there's a real tension there between, like, the antipathy to collective-bargaining among some of the folks who are in government now on the one hand, but then also the desire to have these employees onside on the other.

Juliette Draper  20:52

Wow, 1,000% so when thinking about differential treatment of agencies more, we've been seeing, I think my favorite agency, the CFPB, some would say, was disemboweled. Recently, you may see other agencies that we may think of as more in the domain of violence, whereas CFPB would be more in the domain of bureaucracy. In the domain of violence, you may see agencies like the FBI having their capacity reduced. So can we take that to mean they are not actually wanting to maintain the domain of violence.

Emily Chertoff  21:21

Yeah, so I definitely the administration has come in broadly critiquing a variety of agencies, including many law enforcement agencies. There's obviously been discussion of cuts to DOD. There's been a lot of turmoil within FBI. So I do think that in addition to the sort of obvious, you know, dismantling of the capacity of some regulatory agencies, there is this sense that maybe there's some interest in the administration also in reducing the capacity of these coercive agencies. I do not think that that is what we're likely to see. And obviously this requires a little bit kind of thinking about their policy goals and trying to forecast how those might play out with—in terms of agency capacity, you know. And if you look at what is happening at an agency like FBI, I perceive the objection that the administration has not to be that FBI is too powerful, or that FBI shouldn't exist, but that there are people within FBI who they feel are not carrying out their role in appropriate ways, and maybe who are hostile to the administration and its programs. And so, we'll see. But what I would expect is if you look at agencies like FBI and DOD and some of the other law enforcement agencies within DOJ, you may see some people leave, but you're not really going to see an effort to reduce those agencies’ capacity. It may happen inadvertently, but that is not their goal. Whereas with some of these agencies that they've started making cuts to, there is clearly a real desire to have those agencies like basically being capacitated and unable to carry out their statutory roles.

Juliette Draper  23:15

That's fascinating. Would you say that the example of what happened in the Southern District of New York—of you have these like, rank-and-file attorneys leaving because they don't want to sign off on the Eric Adams order—would you say that's similar to maybe purging people who are unsympathetic to policy goals and finding people who may be more willing to do things that are coercive?

Emily Chertoff  23:37

I think it's possible. Yeah, I think that with all of these things, like, there's a lot of stuff the administration is interested in doing that involves criminal prosecution, right? I mean, they're talking even as you take the immigration context, there are a variety of ways that they have proposed making different kinds of behavior criminally sanctionable and subject to prosecution. Like there's this new registration requirement, for instance, that immigrants are supposed to comply with to register with DHS, and theoretically, if they don't do that, then they're eligible to be criminally prosecuted, just as an example. So that requires like, having prosecutors, and if you don't have prosecutors, you can't do that, but you do need people who are going to be willing to carry out those policies. And the Trump administration, candidly, I think not totally incorrectly, has the perception that during the first go around, the first Trump administration, there were a lot of people within the kind of like upper and middle and even in some cases, like lower ranks of these agencies, who did not want to carry out the policies for whatever reason. And so, I think one reason you see this real interest in like the unitary executive and kind of expanding White House control over agencies is because they want to be able to implement their policies. And so, it's totally consistent with that to say we want to eliminate people from the workforce who we feel are not going to implement our policies and different to say we believe that an entire agency should be abolished, or we need to dramatically reduce the force like those are two—I think it's important to disaggregate those two things, because they're actually different and may have different effects.

Juliette Draper  25:16

Okay, that's a great distinction. I really appreciate that. And thinking about the collaborative efforts that may occur between agencies. CLR published an article by Shayak Sarkar’s Internal Revenue’s = External Borders,[2] which was a phenomenal discussion of how the IRS will often collaborate with ICE officials. Can you try to distinguish for us between force agencies in more quote, unquote, like bureaucratic agencies like the EPA, yeah.

Emily Chertoff  25:42

So I have a few thoughts, both on that kind of like distinction between these two kinds of agencies and on the idea of collaboration in general. So, I think one thing about this article, my article that is maybe like a little bit unfamiliar for for lawyers and for legal scholars, is the idea that we want to think about the functions that agencies play, maybe more than we think about the kind of formal categories of those agencies. And obviously the article is talking about, you know, the domain of bureaucracy and domain of violence, which is more of a functional thing. But then it also talks about like force agencies and other kinds of agencies. So, I'm doing some of that too, and partly it's a question of like, how do you make things kind of legible for a legal audience that's more used to thinking in terms of these formal categories? But part of the thing that I think is important to think about or understand is that it may be the function that particular employees of the agency are carrying out that actually conditions how they're applying the law. So, if you look at the example of like IRS agents, most people who work for the IRS are doing kind of conventional bureaucratic, adjudicative work. They have tax returns. Maybe they're doing some kind of like investigations to try to figure out, have people actually done what they said they did. They audit people. But all of that basically involves, we have a set of guidelines. We're looking at evidence, you know, and we're going to apply those guidelines to the evidence and make a reason determination about, like, did this person under pay their taxes, or whatever it may be. So that's bureaucratic. This kind of cadre of people within IRS who have weapons and are actually involved in what effectively looks like policing work. It is entirely possible that those people are kind of within this domain of violence—essentially, that the function that they're playing conditions them to apply administrative law in a way that's going to look more like other agencies that use force than it does like they're kind of bureaucratic colleagues—that being said when you talk about organizational culture, I do think it matters if you are a tiny group of people within an agency that is highly bureaucratic, versus if you have an agency like ICE, where it's like, really mostly enforcement agency. And so that probably does also affect how people see their roles and how they apply the law, and it's something that this article doesn't really explore, but I think is important. The other thing—and it's okay if you don't want to talk about this—but the sort of like way that the capacity of the different like force agencies is being arrogated, I think is one of the most important things that's happening right now in the administrative state, or at least that the Trump administration is attempting to do. And it's kind of beyond the scope of article, but something I'm writing about now, and I'm happy to talk about it, if you want to,

Juliette Draper  28:37

Please anything on that would be really great. We're very curious to understand what's happening in the world.

Emily Chertoff  28:43

So, I have a paper with my colleague, Jessica Bowman Posen at Columbia, that's going to be coming out this summer that talks about this a little bit. It's called the Administrative State’s Second Phase, and it's coming out in NYU Law Review. So if you're interested in this idea, I would check that paper out. But one of the things that we are seeing right now with the Trump administration's immigration enforcement kind of drive that's been kind of its core policy proposal on the campaign trail, one of the things that it really has been messaging heavily as a new administration and the media: the Trump administration, is trying to kind of arrogate the power of different coercive agencies in a way that's really interesting. So these initiatives are obviously being led by ICE and CBP right like those are the agencies that we would expect to be most focused on immigration enforcement. They're the ones that have primary statutory responsibility for immigration enforcement in the interior and at the border respectively. But they're also using a lot of other agencies to do this kind of work, right? And they're specifically using the sort of coercive capacities of these agencies. And so some of this is not new, like if you look at the kind of use of DOD at the border. That's something that previous administrations have obviously done, right? You know, the Trump administration is just adding more people, but some of this stuff, like detailing people from FBI and DEA to do immigration enforcement work, that’s stuff that we saw a bit in the first Trump administration, but they seem to be trying to make a more sustained effort to kind of aggregate this capacity and use it for immigration enforcement than we've seen previously. And I think that is just a really important development, because what it suggests is that we think there are these different boundaries between agencies—that they have different statutory mandates. But what you realize is that those mandates, particularly when you're talking about anything in the area of like security and kind of like national interest, those mandates are quite vague and flexible. And in reality, you have the ability to use those resources for immigration enforcement actions with like, some massaging of the statutory mandate, but it's not actually totally outside of what these agencies are permitted to do. And so, there are cultural barriers to that project, like, I think that I am anecdotally understanding that there's some resistance within the FBI to doing some of this immigration enforcement work, but that question of how those resources can be connected, and the barriers that law in this case does not really seem to pose to doing that. I think that's one of the most important administrative law stories in this administration, and something that I certainly will be watching.

Juliette Draper  31:39

Wow, okay, that's incredibly interesting. So thinking more about how the administration may use ice as a tool of political repression, could you help us contextualize what happened on March 8 at Columbia University. That night, ICE officials took Mahmoud Khalil, a green card holder and recent graduate of Columbia, from a university-owned building where he and his pregnant wife live. Earlier on Friday, March 7, the Trump administration revoked around $400 million in federal funding from Columbia. So you have this part-one, part-two, situation where you see the Trump administration coming after these large colleges and the students that create communities on these campuses and vie for the recognition of human rights. In doing so, the Trump administration sends a very potent message about what its values are, of course, and that it intends to repress student voices who advocate for Gaza. What are your thoughts on this? And how can we situate this within your article and within the larger cultural and political context?

Emily Chertoff  32:43

Yeah, so I think that the connection you're drawing between the grant cuts and some of the immigration-enforcement work that's being done at Columbia—the connection is maybe that these are both forms of enforcement. And one thing that I think is really important, and again, like a kind of, like another story in this administration that I think is worth watching, but also not necessarily something that's unique to this administration, is that, as the Supreme Court has, you know, implemented a somewhat formalistic vision of the separation of powers, it has said, well, actually, what the executive branch ought to be doing is enforcement, right? Like, that's kind of the activity that's proper to the executive branch. At the same time, you know of an administration that has a lot of priorities as an administration that are really about enforcement. And so, in a way, I mean, it's, it looks totally different, like the kind of enforcement that I'm talking about in this article is a sort of, like physically coercive—like we're arresting somebody who we think doesn't have lawful status or maybe has violated the terms of their status in detaining them. So that's one kind of enforcement, but this grant revocation is another kind of enforcement. You're saying, you know, you're not complying with the terms of these grants, and so we're going to take the money away. And so, I do think another thing to pay attention to is just how many of the things this administration is doing fall into the category of enforcement, specifically to ask what relationship that has the directions that the Supreme Court is giving the executive branch about the appropriate scope of executive activities, and to ask whether that's like narrowing the policy scope of administrations. I think this administration would want to focus on enforcement anyway, potentially, but it is also narrowing the policy scope of future administrations in terms of what they're able to do, or maybe feel they're able to do without being, you know, reviewed and overruled. So I think that's one thing that's going on. Just in terms of the particular enforcement action against the student who you mentioned, we talked a little bit about this, but there's just, like, a little bit of a lack of clarity about, like, did they actually realize that he was a green card holder? You know, did they make a mistake and not realize that or are they actually talking about potentially revoking his green card. One thing, and again, slightly outside the scope of the paper, but this is always so true when we think about immigration law, and really any kind of law that has like a national security valence—national Security justifications for something like revoking a green card are incredibly capacious. And one thing I'm far from the first person to say this, many people have you know critiqued national security law in this way, but it tends to be so vague and so flexible in terms of what qualifies as a national security threat, and particularly when you're talking about this in the context of immigration, where already there's like, a tremendous amount of discretion in the executive to make determinations—then if you add on to that a national security rationale it can be quite powerful to courts. I think obviously like having a green card confers, you know, like real rights in terms of being an immigrant in the United States. And so again, it's like to be determined what exactly is happening with that case. But this is why people don't, why people have concerns about national security as a rationale in all these different domains, because it's frequently, like, highly discretionary by the executive.

Juliette Draper  36:32

1,000% 1,000% and one thing on the discretionary element that we've been talking about, in the paper, when you're talking about like the functions of some of these coercive agencies, I viewed like the justification for having such wide discretion as not knowing in the moment what kind of threat you'll encounter, like we talked about earlier. But thinking about like planned deportations, or when, like, I know I'm going to go to x-point and take this person—I can maybe guess what, if, whether they'll be armed—or I can come more prepared than them. To me, that would mean that you need less discretion, because you can guess, like in the moment, it won't have to be as chaotic even. But so, does that undercut the justification, maybe, for what's happening? Or how can we think about planned deportation versus someone at the border?

Emily Chertoff  37:20

Yeah, that's a good question. I so, I think the thing about planned deportations is that if you asked ICE agents, and this, again, isn't it's that's embedded in the training the agency does, the concern is that, yes, you've said we're going to go to this person's house, we're going to arrest them. We know who they are. We have an idea of, like, what their kind of background is, that they have a criminal history and so on. But there's always a possibility that that person is going to be armed. And in fact, if you look at what ICE agents are trained for, the training emphasizes the possibility that you're going to face armed resistance from people you're trying to arrest. And so, I think that there is some conditioning that goes on in terms of wanting to prepare people, maybe for the worst-case scenario, but then, in so doing, you're potentially reinforcing the idea that that scenario is one that they might face. And again, it's not to minimize to say that there are no risks associated with any of these jobs. But if you look at the statistics, you know there are about 8000 ICE agents at this point, and none of them have been killed directly in the line of duty due to any immigrants’ actions—or people have died because they've had, like health crises while they've been doing enforcement work, but no one who has actually been killed because of something that an immigrant, like, like, actively did to them. And so, so I guess that is why, I'm not sure, in the end, there's such a distinction between those things, although I could also imagine feeling like the environment at the border is even more unpredictable, and I think some people who study CBP might kind of say that.

Juliette Draper  39:11

Okay, that's really interesting. Then thinking kind of at the end of your paper, you talk about policy implications, and you propose some reforms, could you speak on that a bit as we near the end of the episode?

Emily Chertoff  39:22

Yeah. So, the article talks a little bit about some interventions that get at some of these more structural features of agencies, and specifically at organizational culture, and suggests that agencies think about them as probably the most viable ways to try to reduce unauthorized use of force and encourage compliance with law. So, this is some things, like thinking about the form that training takes. There are police departments that have tried to kind of develop and change their training so that it's much more kind of scenario-based, actually placing you in the situation where you might be confronted with the need to use force and really making you feel as if you're in a pressure situation. And if you're able to train people in that kind of context to follow the rules, you may be more effective at getting them to comply than if you're just passively communicating something and expecting them to apply it in this extremely emotional and difficult situation that they find themselves in. So, thinking about ways that you can kind of condition these kinds of automatic responses that people may have and also sort of shape the culture within these agencies. So, I do talk a little bit about unionization as something that has played an important cultural role within ICE—also a lot of work on police unions and the role that they play in kind of reinforcing culture within police departments. So, thinking a little bit about shaping some of those features of these organizations, I think is the best hope for trying to deal with this problem, even as I have some kind of residual skepticism or concern that some of these problems may be fairly intractable.

Juliette Draper  41:09

Well, I hope that your further work in this space will continue to look at those problems, and I know that for anyone who hasn't read the piece, everyone should it was really a great read. Do you have anything that you hope a listener or reader will take away from this episode more generally, too?

Emily Chertoff  41:24

I would just say that it is really important to pay attention to what's happening with immigration enforcement, not just because you may be worried about immigration enforcement, but because I think that it has civil liberties implications for everybody in the United States.

Juliette Draper 41:39

Thank you so much. This has been a great talk and thank you for joining us and discussing your article and you mentioned it, but so you have a piece coming out soon in the New York Law Review?

Emily Chertoff  41:50

It’s going to be an NYU Law Review. It's called The Administrative State's Second Face.

Juliette Draper  41:55

Awesome. Everybody should read that next after reading Violence in the Administrative State. Thank you so much, Emily for joining us today.

Emily Chertoff  41:59

Thank you, Juliette. Nice to talk to you.

Juliette Draper  42:03

We hope you've enjoyed this episode of “Source Collect.” If you would like to read Professor Chertoff's article, you can find it in volume 112 of the California Law Review, at californialawreview.org. The audio you heard in the podcast new introduction was from a 1998 conversation between Judge Thelton E. Henderson and Harry Kreisler. Judge Henderson, an alumni of UC Berkeley and Berkeley Law, is an inactive senior judge of the United States District Court for the Northern District of California. CLR is honored to recognize Judge Henderson's impact on our community. For updates on new episodes and articles, please follow us on Instagram @CaliforniaLawReview, a complete list of our socials is available on our website. Lastly, you can find a list of the editors who worked on this episode of the podcast in the show notes, thank you and see you next time!

[1] University of California Television (UCTV), Conversations with History: Thelton Henderson Jr., YᴏᴜTᴜʙᴇ (Aug. 15, 2008), https://www.youtube.com/watch?v=x3c7bie4vBo.

[2] https://www.californialawreview.org/podcast/podcast-with-shayak-sarkar