AOC’s criticism of Donald Trump

Another reporter asked me some stuff! This time, it was about AOC’s criticism of Donald Trump as violating the First Amendment, plus the absurd incident where members of Congress were harassed, and the Newark mayor was arrested, at an ICE facility.

You know what that means! It’s time for Paul Reprints The Stuff Too Long for the Press to Print!

On Congressional power to walk into an ICE facility

So this is actually kind of fascinating. Like everyone else I only learned about this after this incident, but apparently the 2024 Appropriations bill passed by Congress and signed into law by President Biden included a provision saying that none of the funds appropriated to DHS could be used to prevent a member of Congress (or their designee) from inspecting detention faculties, including without notice. If you search for “provide prior notice” in this bill, you can find it. I take it that this is the legal provision that these statements refer to, and it does seem to give members of Congress the right to so inspect (or, at least, to not be stopped from inspecting by anyone on the DHS payroll!). 

More generally, there’s a longstanding constitutional understanding that Congress and its members have broad authority to inquire into the operations of the federal government for the purposes of doing their jobs---this is why they have the power to do things like issue subpoenas, for example. While there isn’t a specific bit of text in the Constitution saying “representatives can march into ICE facilities” or anything like that, often longstanding practice is a good guide to how we interpret the powers of any branch of government, and members of Congress have long understood themselves to have the authority to demand that the executive branch account to them for its compliance with the law in a wide variety of ways.

On the alleged “body-slamming” of ICE agents

Let’s be clear: nobody is above the law, and while members of Congress have certain immunities from prosecution (the Speech and Debate Clause of the Constitution immunizes them from prosecution for anything they say from the floor for example), it’s not unlimited. Members of Congress, just like the rest of us, can’t commit physical violence against people without consequences.

BUT: as we know, when people and police of any kind come into conflict the facts get murky quick. If the body of a civilian and the body of a cop come into contact with one another, there’s a very thin line between who slammed into whom. It’s all too easy for any armed agent of the state to claim that anyone who doesn’t do what they want was “resisting” or “fighting” or, in this case, “body-slamming” them. We’ve seen this before, for example in every police killing of an unarmed Black person where rudeness or disobedience has gotten escalated in the minds of the police to a threat to their safety. Here, given that the members of Congress were in a place they had a right to be, doing a thing that they had the right to do, and upholding their Constitutional responsibility to make sure that the government is following the laws they passed, we ought to extend a strong benefit of the doubt to the members’ accounts unless unequivocal evidence proves otherwise.  

And we ought to interpret ambiguous situations in Congress’s favor. Imagine the following scenario: a member of Congress is walking into an ICE facility, pursuant to their statutory right to conduct an inspection. An ICE officer steps out in front of them to physically impede their passage. The member of Congress keeps going, or perhaps they can’t stop in time, and they come into contact with the ICE officer.  Did the member of Congress “body-slam” the ICE officer, or did the ICE officer “body-slam” the member of Congress?  That judgment is in part going to depend on who has the right to be doing what they’re doing… and in this case, that’s the member of Congress.

On the First Amendment, Trump’s wild inconsistency with it, and why it matters

There’s a lot of complicated constitutional law surrounding the First Amendment’s protections for free speech, but one of the most basic and fundamental principles is that the government cannot engage in what is called “viewpoint discrimination”---either making laws or deciding how to enforce those laws based on people’s particular views. This is obviously a basic precondition for democracy: if the government can punish particular political views, people who hold those views aren’t represented!  This is how the repressive efforts of the McCarthy period played out: the government unconstitutionally punished a bunch of people for allegedly being “communists,” and used that to massively undermine the capacity of the people on the left side of the political spectrum to fairly contest for political power or argue for their beliefs---it’s completely inconsistent with democracy. 

The Trump administration has been violating the rule against viewpoint discrimination over and over again. The most notorious example, of course, would be its efforts to revoke student visas and in some cases even green cards, based on participation in pro-Palestinian protests, writing op-eds against Israel’s military action in Gaza, and the like. Regardless of where you think the right lies in the terrible conflict in Gaza, the simple fact of the matter is that the Constitution does not permit the federal government to punish people for their beliefs on that subject. Moreover, the Supreme Court has held for decades that the First Amendment applies to people in the United States---while the government might be able to deny a visa to someone who is applying for one from abroad because of their political beliefs, it can’t deport someone who is already legally here, and especially not a permanent resident (green card holder) for their beliefs. This is why courts are already ordering the victims of this conduct, like Mohsen Mahdawi and Rümeysa Öztürk, to be freed. 

But that’s not the only way that Trump has been egregiously violating the First Amendment’s prohibition against viewpoint discrimination. Other important examples include his actions against law firms and universities. With respect to law firms, he has issued many executive orders against individual firms purporting to order the government to cancel its contracts with their clients, suspending people’s security clearances, barring lawyers from federal buildings, and similar things. Invariably, the reasons he has given for those orders has revolved around representing his political opponents, representing clients in causes he disapproves of, or, in many cases, employing lawyers associated with former special prosecutor Robert Mueller. Again, this clearly violates the First Amendment, and courts are already enjoining these orders. 

As for universities, Donald Trump’s putative “antisemitism task force” appears to be trying to use universities as a cats paw to punish their students for, again, constitutionally protected speech like protesting the war in Gaza. His demands to Harvard and Columbia go even further. In the demand letter to Harvard that provoked the university to sue the government, his “task force” insisted as a condition for the restoration of federal funds that it submit its hiring and admission processes to an external monitor, approved by Trump, to ensure “viewpoint diversity.”  “Viewpoint diversity” in this case just means “hire and admit more republicans.” And while people might reasonably disagree about whether Harvard ought to do that, the First Amendment unequivocally prohibits the U.S. government from forcing it to do so. Which, of course, is why Harvard sued---and why it will win.