newsletter 04/16/26

Immigration, First Amendment Rights, and More

It’s been a busy two months in the immigration space–in the Supreme Court, in the lower courts, and in statehouses. We’re proud to share the highlights here:

Immigration in the Supreme Court:

Protecting birthright citizenship: The merits of the Executive Order attempting to limit birthright citizenship finally reached the high court on April 1. Although ICAP and our partners at CASA and the Asylum Seekers Advocacy Project (ASAP) were the first to obtain a universal injunction against the Order last February, went to the Supreme Court on the scope of the injunction last May, and obtained a nationwide class-action against the order shortly thereafter, the government decided to seek review of the merits in a case brought by our friends at the ACLU instead of in our case. We listened to the argument with great interest, as our case on behalf of babies who would be impacted by the Order is stayed pending the Supreme Court’s decision. And as the smile on Executive Director Mary McCord’s face shows, while live broadcasting across the street from the Court, we’re optimistic that a majority of the justices will invalidate the Order, preserving birthright citizenship for all those born in this country and subject to its jurisdiction, just as the 14th Amendment promises.

Protecting the right to seek asylum: On March 24, ICAP Supreme Court Director Kelsi Corkran was back in front of the Supreme Court for the first time since arguing CASA v. Trump last May. This time, Kelsi argued on behalf of asylum seekers who successfully challenged a Customs and Border Protection practice of physically blocking non-citizens from crossing the border at ports of entry to apply for asylum. The Ninth Circuit had previously ruled in their favor, but the government petitioned for Supreme Court review, which was granted. Kelsi’s masterful argument urged the Court to protect the rights of asylum seekers, consistent with congressional intent and international treaty obligations.

Immigration in other courts:

Defending local policies: While continuing to defend Indiana Sheriff Ruben Marté’s policy not to voluntarily cooperate with federal immigration enforcement in a state court suit filed against him by the state attorney general, we’ve also gone on the offense. After the state enacted a law requiring local law enforcement to honor administrative immigration detainer requests–which are not judicial warrants based on probable cause of a crime–we filed suit in federal court to challenge the law, set to take effect July 1. The state law puts the sheriff in an impossible position: If he honors immigration detainers as the state law requires, he violates his oath to the U.S. Constitution by violating the 4th Amendment rights of those who are due to be released from the jail and he subjects his office to civil liability for any lawsuits brought against it for the violations; but if he refuses to honor immigration detainers, he violates state law and the state attorney general can seek financial penalties for each detainer he refuses to honor. We are seeking an injunction against the state law before it goes into effect.

Holding ICE accountable: As part of our work with the Hennepin County Attorney and the Minnesota Attorney General to investigate the two fatal and one non-fatal shootings by immigration officers during “Operation Metro Surge” in Minneapolis earlier this year, we filed suit challenging the federal government’s policy and practice of blocking Minnesota investigators from accessing evidence related to the shootings. In each case, the refusal to share evidence–in sharp departure from the usual cooperation between federal and state law enforcement in investigations of this nature–followed intervention by senior federal officials who directed that evidence would not be shared with Minnesota authorities. As this litigation proceeds, the investigations of the shootings–necessary to ensure justice for the Minnesota victims and the community–continues.

Protecting unaccompanied minors: After learning that immigration officials have been violating the preliminary injunction we obtained to prevent DHS from expelling unaccompanied minor Guatemalan children in violation of the statutory protections enacted by Congress, we went back to court to ask for an order requiring the government to show cause why it should not be held in contempt. Our motion describes how immigration officials are coercing children to “voluntarily” return to their home countries during the short period of time before they are transferred to shelters and obtain attorneys, by threatening them with lengthy detention, arrest and removal of their sponsors in the United States, and legally barring them for applying for a visa in the future. These coercive tactics not only violate the law, they risk sending children back to the same dangerous and violent environments from which they sought refuge when coming to the United States.

Immigration in the state legislature:

Consistent with ICAP’s legal defense of Sheriff Marté’s policy of refusing voluntary cooperation with federal immigration enforcement, ICAP Special Litigation Counsel Joe Mead recently testified before the Maryland General Assembly about the constitutionality of a bill introduced to limit state and local cooperation with federal immigration efforts. As Joe testified, “The Supreme Court has repeatedly made clear that, while the federal government possesses broad authority over immigration, it may not compel states or their officers to administer or enforce federal law.”

Safeguarding the First Amendment:

Standing up for journalists: On March 10, ICAP Senior Counsel Bill Powell argued in the Ninth Circuit on behalf of award-winning radio journalist April Fonseca, who was arrested and had her recording equipment seized by law enforcement when attempting to report on the clearing of an encampment in a public park. As Bill told the court, the arrest and seizure violated Ms. Fonseca’s First Amendment right to record public officials doing their jobs in public.

Standing up for protesters: In an ongoing federal case challenging constitutional violations by federal immigration agents against Minnesotans protesting the immigration enforcement surge in Minneapolis, we proudly filed an amicus brief on behalf of over three dozen former career attorneys from DOJ’S Civil Rights Division. These former attorneys all had been involved in investigations of state and local law enforcement in which the U.S. government had concluded that similar uses of excessive force and retaliation violated the Constitution. The brief persuasively explains that federal law enforcement, including ICE, should be held to the same standard as any other law enforcement agency.

Standing up for lawyers: As we did in each of the cases challenging the Executive Orders blacklisting law firms based on the people and causes they represented, ICAP once again supported the targeted firms by filing an amicus brief in the D.C. Circuit in response to the government’s appeals of the four district court judgments permanently enjoining the retaliatory orders. On behalf of legal ethics professors, and in partnership with the Harvard Election Law Clinic, we explained the ethical quandaries posed for lawyers at the firms that were targeted as well as the serious ethical issues that arise for the lawyers at the firms that capitulated.

Relatedly, ICAP’s Mary McCord called out the Department of Justice’s embarrassing overnight reversal of a decision to dismiss its appeals. In a recent op-ed, Mary argued that the Department’s withdrawal of its motions to dismiss the very morning after the motions were filed–and after the dismissals made headlines that reportedly displeased the president–exposed the Department as a purely political actor “because every lawyer in the Department knows that the federal court rulings were correct and that the executive orders are indefensible.”

Ensuring accountability:

Accountability for local government actions: Before the en banc Sixth Circuit, ICAP seeks to hold accountable a county detention center in Kentucky that ignored the risk of putting a man arrested for unpaid child support in a cell with two detainees who had a history of assaulting other detainees and staff. Within minutes, these men brutally attacked our client, who sustained life-altering brain injuries that led to permanent disabilities and partial paralysis. We argue that the panel’s decision properly concluded that our client’s claims under the Fourteenth Amendment were strong enough to go to a jury and should be affirmed by the en banc court.

Accountability for federal attorney misconduct: In response to a proposed DOJ rule that would allow the Attorney General to indefinitely delay state bar investigations of professional misconduct allegations against Department attorneys, ICAP filed a letter on behalf of over 350 former U.S. Department of Justice lawyers opposing the rule. As ICAP Senior Counsel Sam Siegel described it, “This proposed rule is legally wrong and factually unsupported. Its purported rationale–that the state bar disciplinary process has been weaponized–ignores the fact that any increase in state bar investigations of DOJ attorneys is likely due to the large number of highly publicized incidents of actions that, if proven, would clearly establish professional misconduct.” Signatories include former Acting Attorneys General, Senior Ethics Officials, and Inspectors General.

Accountability in public opinion: In addition to writing about the Justice Department’s embarrassing legal about-face in the law firm blacklisting cases, Mary has worked to keep the public apprised of other abuses of government authority. She criticized the ominous precedent set when the Department agreed to pay former National Security Advisor and Trump ally Michael Flynn $1.25 million to settle a baseless malicious prosecution claim after Flynn had pleaded guilty in 2017 to lying to the FBI about his efforts to convince Russia not to retaliate against sanctions imposed on it for its election interference efforts. And following the firing of former Attorney General Pam Bondi, McCord reflected on the testimony at Bondi’s confirmation hearing of three law enforcement witnesses who had worked with her when she was the Florida state attorney general, noting how their earnest predictions that she would “follow the evidence and the law, without fear or favor,” that attorneys at DOJ would “love working with” her, and that she was a “staunch supporter of crime victims,” had been utterly undermined by her actions in office. Mary spoke more about Bondi’s “legacy” on PBS Newshour.

Don’t Miss It!

Thursday, April 30th at 1 p.m. ET: ICAP’s Kelsi Corkran will be featured as a panelist at the Constitutional Accountability Center’s 13th Annual Home Stretch at the Supreme Court event. Kelsi will be joined by an impressive panel of legal experts in a discussion about the most significant cases of the Supreme Court term. RSVP for the virtual event here.