Law, Resistance, and the Role of the State - Part 2

Amna Akbar, Benjamin N. Berger Professor in Criminal Law, and Emmanuel Mauleón, associate professor of law — two leading scholars of critical legal thought — join Dean William McGeveran in a discussion about policing, social movements, abolition, and the tensions between state power and grassroots movements for justice — including the most pressing federal–state conflicts unfolding in Minnesota today.

From the deployment of federal immigration enforcement agents into Minneapolis and St. Paul as part of Operation Metro Surge to state-level investigations into federal conduct and pushback against federal funding actions, Minnesota has become a key battleground over law, coercive power, and democratic resistance. Recent events have included confrontations between federal agents and protesters, widespread protests against ICE operations, and legal action by Minnesota officials challenging federal tactics and seeking accountability for alleged misconduct by federal officers. These tensions highlight deep questions about the limits of federal authority, civil liberties, community self-determination, and the law’s role in both upholding and resisting state violence.

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Minnesota Law Now is a new podcast from the University of Minnesota Law School that brings together some of today’s most insightful legal scholars in conversation about law, policy, current events, and the ideas that shape our world.

William McGeveran: Welcome to Minnesota Law Now, the podcast from the University of Minnesota Law School. I'm William McGeveran, Dean and William S. Pattee Professor of Law here at Minnesota Law. Today we're joined by two of my brilliant Minnesota Law colleagues, Professors Amna Akbar, who's the Benjamin N. Berger Professor of Criminal Law, and Associate Professor of Law, Emmanuel Mauleón. We're going to have a conversation about law, resistance, and the role of the state.
Amna, as you bring your theoretical lens to everything we've been talking about in terms of the immigration operations here in these last months and continuing, what are things that people are missing? What are important things that are important for people to perceive who might be listening, but they might not?
Amna Akbar: I think one of the big debates that's happening in the country, and it's illustrated partly by what happened in the Twin Cities in Minnesota, is what is the purpose of the state? What is it there for? What do we expect from it? The contest over the purpose of the state is, I think, a very active part of both legal and political discourse, and in very subterranean ways, even legal scholarly discourse.
If you think about, for example, the point of view of some of the signature Trump administration projects, whether that's DOGE or it's ICE terror, ICE occupations of cities across the country, or it's the Trump crypto coin, this is a very particular view of the state as a legal and political institution and what it does and should do and who it protects and how. It's anti-immigrant, it's anti-social capacity, it's devoted to the upward distribution of wealth and outright grifting for those in power.
Scholars have written about this in the last several decades. Ruth Wilson Gilmore, the geographer, has called it the "anti-state state." There's a sociologist in Australia who's called it the "anti-social state." That view is a minoritarian view, but one that has a lot of power behind it. It's not just aspects of the right wing that are behind it, but the oligarchs that are backing and at least copacetic with these projects, whether we're talking about Bezos, Zuckerberg, Thiel, or Musk.
Many of them are benefiting from these projects directly and indirectly. It's like a neoliberalism on steroids. You could think of it that way, but there's a big reason to think that it's deeply unpopular. That's part of where we're getting all these different kind of conflicts. Part of what Emmanuel is describing, part of what we saw here, is a version of the state raining on down from the feds, then, to varying degrees, constrained by the various constraints we all have, communities fighting it. The mayor fighting it, the governor fighting it, the city council fighting it.
Obviously, one of the really difficult things about those struggles is precisely the health of democracy in the United States. As we all know, democracy is not an on-off switch. It's a kind of terrain, and there's all sorts of reasons to be concerned about the health of democracy in the United States, the way that the state is captured by organized wealth and not responsive to the needs of people.
I think that background is essential to what's playing out around the country in all sorts of battles, whether it's against ICE occupations, whether it's against the Trump warehousing project, which now it seems like they've rolled back to some extent, whether it's the battle against data centers. The question of what do we band together to do, what is the state there to do, what can we stop it from doing, what can we expect it to do for us is very much, I think, in play.
It's a long way of saying, in response to your question, the deeply existential nature, in some sense, of these challenges for people who are trying to survive day-to-day, housed, putting food on the table, or us as a society facing, whether it's authoritarian regimes or environmental collapse, I think are ones that we need to be thinking about in a very deep way. I think the time, in some fundamental sense, is now.
Emmanuel Mauleón: I'll follow up. I would agree with that. I think that the twist, or the addition that I would add, is some of the ways, even the critical ways that we're understanding, I think as lawyers, as academics, certainly as what I imagine the audience to this podcast thinks about-- For example, your question about how are protests being cast, what is the role of protesting, what is the role of courts? I think that the moment that we translate all of these problems into legal vocabulary, cognizable constitutional claims, we're already ceding a lot of ground about what is happening. What is the problem? How are we framing the problem?
I think even in framing those problems, even if we are successful under claims of protest, if we're successful under claims of the Fourth Amendment at the court-- One of the things that I've said in some of the media appearances is that would you want the government claiming that you giving a meal to your neighbor is protest, that you need a First Amendment right to be able to send your neighbor's kid to school?
Because to the extent that you are blurring the line between a constitutional observer, somebody that's actively showing up to a protest, and people just helping each other out, and that's somehow thought to be contrary to the state, by putting it in the form of legal claim, we're already ceding the ground that is where that problem resides.
William: That's even a proper conceptualization of what's happening there.
Emmanuel: Yes. Absolutely. One of the things that terrifies me, as somebody that studies the Fourth Amendment, for example, in many of the cases where courts have robustly upheld the Fourth Amendment, they've simultaneously accepted some of the underlying legal basis for ICE to be conducting these claims that exceed prior doctrine. They'll say this is against the law, but we are bound by recent Supreme Court precedent. That precedent is non-presidential shadow docket concurrence by one single justice. This is how the law gets pushed in these extreme directions, because even as you are robustly defending it, it's creeping in on the margins.
William: Things move a few steps forward, and they're not pushed quite that many steps back.
Emmanuel: Right. Exactly. Often, I think, in legal circles, we're debating, "Well, have we reached the point of a constitutional crisis? We're not quite there." I like to take a step back and say, whether we're in a crisis or not, Operation Metro Surge occurred. We should be focused on what's actually happening on the ground and not determining at what point does it actually becomes a crisis. The crisis, for the people living it, is now, and they do not care about the legal categorization of whether or not the courts have been defined. They care about the fact that their parent was taken off of the street in this extreme way.
William: I want to move the lens back to some broader themes, because of the theme running through both of your work that both of you have been alluding to here, which is the relationship between reform and transformation. Amna, you talk in your work about abolition, but that's a term that has increasingly become prominent in public conversations, but also misunderstood and sometimes willfully misused in conversation. How do abolitionist scholars think about social change? What do you think people most often misunderstand about these concepts?
Amna: This is both exciting and sometimes, a little bit, makes these conversations difficult, which is the concept of abolition in the last 10 years has become fairly viral in the sense-- Not just from its critics, but also from people who support abolitionist projects. The contemporary history of abolition, in my view, starts with the work around abolishing the prison or the prison industrial complex, so prison abolition.
In the last 10 to 15 years, with the resurgence of all these left social movements and organizations, you will hear about abolishing the prison, but you'd also hear about abolishing the family or abolishing wage labor. All things which are good and important things to talk about, think about, and contend with, but I want to focus on prison abolition because that's really what people tend to be thinking about. It's the core, in some sense, of where these other conversations are also spawned from, at least in the last 10, 15 years.
When scholars of prison abolition, intellectuals, and movement participants write and think about prison abolition, they're talking about the idea of building a society that does not depend on prisons, police, and surveillance, one that meets people's social needs in democratic and social ways, housing and food, but also, for example, living in right relationship with the land and non-human forms of life, so animals and plant life, for example.
One of the problems that I think prison abolitionist discourse identifies in really powerful ways is that the prison or criminal law or police, in a carceral state of the sort that we live in, becomes this encompassing solution for all manner of social problems, the idea that if you have a hammer, everything looks like a nail. In a society that has the historically and geographically unprecedented levels of criminalization and incarceration that we do, and the extent of criminal laws that we have, even formally non-criminal laws that are criminalizing, for example, immigration law, there's a way in which everything starts to look like a criminal law problem.
I remember when I was living in Ohio, a headline from the Columbus Dispatch that will always stay with me was that the city council-- Basically, at the local soccer stadium, there had been a problem with hecklers. The city council was debating whether to pass a criminal law specific to criminalizing hecklers at the soccer stadium. It's like just the go-to response to all manner of things, whether it's domestic violence or sleeping outside or drunk driving or heckling in a soccer stadium; we live in a society that so quickly turns to the police or criminalization that it's hard to imagine alternatives.
Part of the abolitionist critique is to point that out, and part of the abolitionist imagination is to say, "Can we try to disaggregate these and see these as distinct problems? Can we think about different ways to respond to them?" For drunk driving, for example, what if we had free public mass transit so that people didn't have to rely on their cars in the way that they do?
One of the old demands of the women's movement in the mid-20th century in response to intimate partner violence was equal wages, was investments in shelters, was housing because they knew one of the reasons that people were staying in abusive relationships was because they were depending on them financially. What if we could guarantee more people's needs so they weren't stuck in relationships?
Of course, the history of that partly is that we get a bunch of criminal laws responding to that movement. Part of the idea with the abolitionist project is to peel back those layers and think about how could we respond to these things in different ways. Part of that can be, or is for some people, a state and policy response, and some of it is building community capacity outside of the state.
William: Emmanuel, you study policing, and Amna's just given a critique of essentially over-policing or hyper-policing. When you look at your frameworks, how does this concept of what Amna called the abolitionist imagination intersect with what you work on?
Emmanuel: I think Amna's work has been really helpful for me to rethinking some of the problems. I think I take a slightly different approach, which is I fundamentally agree with the imaginative project and restructuring the world. A lot of my work focuses on, "Why is this one so durable and so difficult to dislodge? Why are people so attached to this version?"
What I think about is that we often frame abolition as the abolitionist imagination. We fail to name that the state that we live in now is also in an imaginative state, the one that produces safety, the one that produces security, the one that produces welfare, the one that produces jobs; all of this is also a fiction that this state is not producing. In fact, as Amna named so clearly, is extractive for many people. They experience it mostly as coercion, extraction, and disempowerment rather than all the things the state is telling you that you're going to lose if you go over to the abolitionist perspective.
Part of what I try to work on is think about if so much of this is ethereal and theoretical, but it doesn't actually structure people's lived experiences of policing, why is that so durable? Part of the answer is the social categories that move along with it, race being a fundamental one. Race as this deployed technology to sow division, to make people suspicious of one another, to allocate suspicion, to allocate safety in this way that is immediately recognizable and yet not necessarily something that people have understand the grammar or the logics. They can speak the language, but they don't understand necessarily how it mobilizes people to do different forms of work.
One of the things that I think, for example, the abolitionist framework would help us understand with Operation Metro Surge, we can understand public safety and disorder. Citizens banding together to build barricades in the street, that is legible to the law as criminal conduct. The ICE enforcement officers driving through it at 100 miles per hour to pick somebody up randomly off the street and ask them about their immigration status, that's law. That's lawful conduct. If we're looking at that divide, I think abolition asks us the question of why are we deferring to the latter and not the former as the site of the production of public safety?
William: Sure. In addition to being provocative and thoughtful scholars and analysts, both of you are also really devoted teachers. Emmanuel, you just won the teaching award for the law school. I wonder, as you think about that role of yours and you think about lessons from today's conflict that will or should shape this next generation of legal advocacy, what is it that you hope the lawyers to be that you're interacting with will take away from recent months in experience?
Emmanuel: The foremost piece of advice that I give students is that they remember that they were fully formed people before law school and that law school does not have to be their entire identity moving forward. I think that what we provide is incredibly beneficial. It is a toolkit. It is a level of analysis. It is a level of reasoning and sophistication for understanding arguments, for maneuvering arguments, for understanding power and how to distribute that.
Thinking like a lawyer is also a constraint in many ways. It is a necessary constraint, even if you don't want to think about it that way. Doctrine is a constraint. Precedent is a constraint. In some ways, thinking like a lawyer requires you to move within constraints, even if you think that the better outcome is outside of those constraints. What I try to remind my students of is not every problem is going to be a legal problem. To the extent that you can remember that people are going to arrive with many different problems, and the more that you translate them only into legal problems, you're going to be missing part of the solution.
Many of my students, when they asked me this semester, how do I show up? What do I do? How do I protest? How do I observe? I said, maybe your legal skills aren't the ones that are the most generative or operative right now. Maybe showing up and packing a bag of groceries to deliver is going to be the more meaningful approach. Understanding when something is a legal problem, when something is not, when you can translate across those two spheres, I think is incredibly powerful.
I had a student arrive and say, "Look, we're reading this case, and I know that I shouldn't be so upset about the underlying facts. I know that's not what I'm supposed to be doing here." I said, "No, no, no, please be upset about the underlying facts because they're horrific underlying facts, and understand how the law is transforming those facts, and then understand that there are arguments against that move. Your move is not to only absorb it as something ordained from on high, but recognize every case that we're reading is not the appellate brief or not the appellate opinion. It is lawyers struggling over the meaning of what should happen at this case." I try to point that out to the students as well.
William: How about you, Amna? What would you add in terms of the future legal advocates?
Amna: I was going to say something a little bit different, just in thinking about teaching. My impression is that Gen Z, maybe Gen Alpha too, but Gen Z has a very acute sense of how deeply things are shifting in the world, and a sense of crisis because of the timeline in which they've grown up, and that they are growing up in. One of the things I was incredibly moved by being here is the central role that young people in the Twin Cities, including some of our students, played in responding to the ICE occupation, interviewing family members of people who were arrested and detained, filing habeas petitions, et cetera.
One of the things I really felt from students in the building, those who were or were not participating in the protests, was just a very deep desire to have conversations, to try to understand: why is this happening? What is our toolkit? Because the other thing that's very real that we didn't get around to talking about is, in some real sense, on a broad spectrum for the public in the United States, but also around the world, there is a sense of existential crisis, and almost like fundamental failure. We tried to change things, and it didn't work, so what can we do?
There's these really important, really difficult questions I don't think any one of us has the answers to. I think higher ed is one of many very important places that we have to fight to protect, for students, faculty, staff, and people who work in the building otherwise, to come together and have these sorts of conversations. The other thing we didn't talk about is, of course, higher ed is under attack as well. Try to fight to preserve the space for intergenerational conversation, sharing of perspectives, sharing of history and scholarly work, and so on and so forth. I think it's incredibly important.
If I have anything to say to students or lawyers of the next generation, it's that let's have these conversations because I think people want to have them. Our students are looking for places to have them and people to have them with. It's really incredible that here at the U, we have many people who are interested in having those conversations and who are fighting to maintain the space to do that.
William: Professor Akbar and Professor Mauleón, thank you so much for joining us and sharing your insights. You're both relatively recent arrivals to our faculty. We went out and consciously looked for people who would be excellent scholars and excellent teachers and bring critical perspectives. We're delighted to have both of you joining our community and joining us here today.
Thank you for listening to Minnesota Law Now. If you enjoyed this conversation, you can subscribe wherever you get your podcast. You can visit the University of Minnesota Law School website for more conversations with scholars, practitioners, and policymakers as we continue to explore contemporary legal, social, and policy issues that shape the world. I'm William McGeveran. Thanks for listening.
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