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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.
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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. Recent events in Minnesota have raised vital questions about federal authority and state power, about immigration enforcement and protest movements, and about the role of the rule of law in moments of political conflict. These questions are certainly not new. They go to the heart of longstanding debates about democracy and justice and the institutions that govern our lives.
Professor Amna Akbar studies social movements, abolition, race, inequality, and transformative social change. Professor Emmanuel Mauleón studies criminal law, race, policing, and legal theory with a focus on how legal institutions shape and reinforce systems of power. Thank you both for joining us here today.
Emmanuel Mauleón: Thanks, Will.
William: Before we get to current events, both of you study institutions and power from different perspectives. Lawyers talk about the state, but I want you to touch on what each of you, in your theoretical frameworks, mean by that term. Why is it important to think about the state and think critically about it? Amna?
Amna Akbar: Typically, in my experience, lawyers talk about the government, and that tends to connote concepts of tripartite government with a federalist structure. People are thinking about the president, Congress, and the courts, or at the municipal level, the mayor, the city council, and the local courts. The reason why I think it's really important to think about the state, especially now, is precisely because it's a much more capacious concept, and it captures a lot more of moving parts that are relevant to daily life, whether that's police and military or it's schools and parks.
Emmanuel: I feel like I'm going to be cribbing from you the whole time. Certainly, I think it's a more capacious concept to think about the state. The state also is structuring more of our social and political life broadly, as you said. As someone that studies policing formally, policing falls outside and within all of those different structures. It is not necessarily responsive to all those structures, but it is one of the places where the state is most present in everyone's lives. I certainly think that it's helpful to think about it more broadly.
William: When we talk about legal institutions, and both of you identified some of the traditional ones that lawyers tend to reflexively go to when they're thinking, when we study them and leave out other institutions or forces, what's missing? What are we leaving on the table?
Amna: I think the question is, what are we trying to understand, and why is it that we're trying to understand it? For me and for the students I tend to work with and the lawyers that I'm most regularly in contact with, we're trying to understand the world that we're living in because it's so incredibly oppressive and exploitative for so many people so that we can try to understand how to make it better.
If we focus on incomplete pictures that are produced by our professional environments that obscure or narrowly focus in on some parts and leave out huge swaths of other parts that are affecting not just the daily life of ordinary people but the actual structures of power that create the world around us, we're not going to be able to make meaningful interventions.
The broadening for me is essential to the extent that my commitment as a scholar, as a lawyer, as someone who's involved in supporting social movements in various ways, is to try to think about where we can make interventions. Without that larger, more critical piece, which makes everything much more messy and much more complicated, we can't hope to make any kind of meaningful change, I don't think.
William: Emmanuel, you especially study policing. How does that fit into the framework of narrowness and breadth that Amna talked about?
Emmanuel: In some ways, policing is defined across-- it's one of the most diffuse forms of state coercion, I think, that we have. We have over 18,000 police departments, but we understand policing as a broad concept as having some of the similar tools, the ability to use force, the ability to use coercive force, the ability to kill. When I think about that, I think in conjunction with the larger question, when we have legal institutions, they're self-defining and they therefore narrowly define the problems of those institutions.
I think that if you're a person on the street, at least with policing, the problems of policing that you might be identifying look different than the policy proposals or the constraints or the other types of reforms that might be coming from actors that are mostly engaged with the critical legal thinking even. I think that it's an institution that crosses many different forms of the legal spectrum but also moves beyond that in many different ways and in ways that I think the law doesn't recognize.
William: Both of you were engaged in extensive commentary and activity about the recent events in Minnesota. In some ways, they're illustrative of the kinds of concepts that you're talking about here. What does this moment and recent times in Minnesota tell us about those federal institutions, those state institutions, and the broader concept of the state and democratic accountability that you're talking about? Where did you see that presenting itself most in these recent months as you looked at the situation?
Emmanuel: To take a step back, I study mostly this idea of protection as a legal and political construct, often how it's reified and distributed unevenly. I think that one of the things that we saw in Minnesota in Operation Metro Surge is how the federal government can claim that it is engaged in protection, law enforcement, and safety production. The state government can say that that's not what they're doing, and then the residents of the city can say that's not what either of them are doing. It's this very live contest over the meaning of public safety, the meaning of security, the meaning of protection, and how it's unequally distributed.
William: Emmanuel talked about the federal institutions, the state institutions, and the community. The community is not a monolith either and includes organized social movements that are part of that too. What happened in Minnesota certainly showed us a lot of that. How does the way you think about power tell us more about the story of what happened in Minnesota?
Amna: To me, one of the really important throughlines of what happened here, in a way that didn't get broader pickup, is something like this. Essentially, one of the many things that we learned from what happened here is that in some fundamental ways, the country is in a pretty dismal place.
What happened in Minnesota, what happened in the Twin Cities, was an inspiration to people all around the country and the world, people who are committed to either anti-fascist or pro-democracy struggles or anti-police, anti-carceral struggles because of how neighbors showed up for one another, fed and housed one another, defended one another in court, came together in all sorts of ways that built on infrastructure that I think had been in the Twin Cities before and beyond but also built new things, meeting the urgent and the scale of what was going on.
I think the mayor and the governor, to various extents, welcomed the shine that the people produced for the municipal and state government, but from what I saw, they were not leading in any kind of meaningful way. It was the people who were fighting, the people who were the bulwark against federal authority, the occupation, who were pointing us in directions of the kind of fight that will be required, both through formal legal channels but also outside and building community capacity that really was the strength of the Twin Cities and the strength of Minnesota.
On the one hand, there's many deeply inspiring elements, I would say, about what happened. I think to the extent that we're thinking about what does it teach us about the play or the state of local, state, and federal politics, clearly there's all sorts of divides, tensions, contradictions, conflicts between whether it's the sheriff of a local jail and the mayor of that city or the governor and the president or one agency or another.
On the other hand, in my view, from what I could see, yes, there were as unequal responses and different kinds of responses from different people in official power, but the real inspiration and the real kernel of what we need to be looking at was actually coming from people who are not in office and not holding formal power and all of the various ways that they were showing how we have to come together in facing all these crises, whether it's an occupation of your city or it's climate collapse.
William: What do you think, Emmanuel?
Emmanuel: I would echo much of that. Because my focus is so much on policing and then doctrinally Fourth Amendment criminal procedure, I was both trying to stay on top of the occupation through official doctrinal language, trying to trace deviations from the standards, for example, warrants required to enter someone's home or reasonable suspicion required for an arrest, how that standard was fluctuating throughout Operation Metro Surge. I think that one of the reasons that I try to peg it there is because legal institutions tend to recognize that language, but much like Amna was saying, the place where I saw public safety being produced the most was not through these institutions that then make the claims to be the producers.
One of the things that I've been thinking about quite a bit in the last few months is trying to frame what the people, what residents were doing in terms of producing their own safety, ensuring their own security, making sure that their neighbors were housed, fed, safe from violence on the street, and thinking about what are the legal frameworks that would understand that, where do those legal frameworks break, and if they break at the point where the federal government is the thing that is producing all of this violence, what does it matter whether we're calling something lawful or unlawful if it's not the thing that's keeping people safe?
Trying to think about translating that into constitutional claims, constitutional arguments, not because I necessarily think that they're the best route for obtaining some sort of justice or remedy, but because I do think that legal institutions are responsive to those types of arguments.
William: Let me just follow up briefly on that. Of course, to some extent during that time and definitely since that time, there's been a number of high-profile judicial decisions, particularly by the local federal judges here, that have often been highly critical and have pushed back. How do you situate that in that spectrum that you drew us between the most formal official institutions and the most informal community-based ones?
Emmanuel: It's interesting. I think that the court's taking a stand, making very clear where doctrine is being pushed or broken, especially in the Fourth Amendment context. Many of the cases that you might be referring to have been very clear about warrantless entry into homes is unconstitutional, and they're not going to accept that.
One of the things that I trace in my work, however, is, okay, the court is speaking with a loud voice, but the police enforcement, the ICE enforcement, precedes that type of enforcement. They might say, "Yes, this was an unconstitutional entry. That person is already been deported." The idea is this lag is part of what the federal government, I think, understands about the legal system, understands that you can make a tremendous amount of political-social change without it being within the confines of legality.
One of the things that has been eye-opening, I think, is that the courts have been, for the most part, very clear about the unconstitutional nature of the surge, but it wasn't reincorporated into the administration. They weren't getting one ruling that said this goes beyond the bounds of the Fourth Amendment and then stopping that type of behavior. It was every judge had to say it over and over and over again. I think that that shows the precarious nature of the law depends on people internalizing those norms and playing them out.
Amna: In a funny way, it's also a sort of illustration of the thing I was saying about the state and local government because I don't remember the numbers exactly anymore, but the Strib and various outlets were publishing that in the first few months of Operation Metro Surge, there were more habeas petitions filed in the state of Minnesota than there had been years past. I think there were similar phenomenon in other places where there were surges of ICE activity, like in Texas and California, and maybe even around the country.
Those were organized efforts by lawyers and legal workers and translators, communities of people coming together and realizing that these deportation proceedings that were being initiated partly through these ICE occupations were going to run through the immigration courts, but that we had a tool through habeas going to federal court and creating some sort of quick avenue for challenge while people were being held in jails and detention centers and before maybe they were flown to another state or to force the feds to fly them back.
There was an extraordinary amount of work between lawyers, legal workers, translators, and then the loved ones of people who were picked up by Operation Metro Surge and beyond that were, on the one hand, doing a very familiar legalistic thing that we're all familiar with, which is putting together papers, doing legal research, doing a declaration, finding co-counsel, filing that thing in court, and bringing the argument in front of a judge.
On the other hand, by virtue of the speed with which it was happening and the number of petitions that were brought, part of what happened was a mode of bringing the crisis of what was happening at a large scale to the courts so that the judges had to deal with the crisis at scale, not only through the case-by-case method that courts and judges are used to dealing with. That was really important.
I think one of the things that we saw, because, of course, a lot of the federal judges did issue good decisions that led to meaningful relief for directly impacted people and their families by ordering people released and allowing people to come back home to their families and that sort of thing, but they didn't stop the deportation proceedings. My understanding generally is to the extent that they found that what was happening was illegal, inappropriate, somehow questionable because it was a break with what had happened before.
It's legible legally to the extent that it is in excess of the deportation regime that we already had in place, which many of us think, I think, is already so fundamentally brutal. It's important to understand that the courts were an important place, but they're a limited place. To the extent that what was happening drew on a deeper structure that is largely legal, even if we might want to contest it, there are limits to what you can do there.
William: That a reset to status quo ante only goes so far.
Amna: Exactly.
Emmanuel: Right.
William: Another thing to draw out of your comment, of course, is that without the kind of cooperative, organized social movement, including, but certainly not limited to lawyers, and of course, as dean, I have to say, including the Binger Center for New Americans here at Minnesota Law, without that whole movement, lawyers and non-lawyers alike, the courts don't do anything because nothing is brought to them in the first place.
Amna: Yes, totally. Having seen some of the work that both happened at the law school and beyond, I think lawyers, law students, and legal workers here really stepped up in ways that were incredibly important to making the effort a success.
William: It was remarkable. There were a number of private law firms that were spending 40% of their billable hours on pro bono habeas petitions, large law firms here in town, which is not the normal behavior with respect to those institutions. That was heartening. I want to talk also about protest. We've talked about policing, which is one-half of what happened here.
Also, of course, a lot of the legal strife and community engagement has been about the efforts to respond in the form of protests, to what was happening. Now, of course, we've seen lots of attempts to use legal mechanisms in response to those protesters. What can we learn about the mechanisms of protest that arose during the immigration operation?
Amna: That's a big question. I guess I would say it's hard not to say right now, given the indictments that just came down in the last week and the prairie land sentences that also came out, I think, this week of extraordinary length, that, of course, on the one hand, this is a moment of extraordinary popular resistance to deportation and detention, and on the other hand, the federal government has extraordinary repressive powers that are on display and coming to life in ways that we haven't seen in generations at the scale and with the amount of splash that we're seeing now.
It's a very humbling and scary moment to talk about and emphasize both the necessity of people banding together, drawing on histories of resistance and social movement activity, and coming up with new modes of resistance of various sorts. On the other hand, I don't think we can shy away from how extraordinarily risky the Trump administration is trying to make that and make that seem.
Of course, they're making examples of people. So far, we haven't seen broad-brush prosecutions, but those examples are extraordinarily scary and powerful. They are and they should be reverberating in social movement spaces around the country. I also think it's important to understand that part of the reason, in my view, we see the sorts of charges with the kinds of sentences that prosecutors are going after. I think it's too soon to draw big patterns, but you can see a correlation between, in some sense, the scale or the popularity of the resistance, which is to say the unpopularity of the Trump administration's policies and the extent that they're willing to do to try to repress it.
William: Emmanuel, as we come out of the most intense phase of this, although by no means out of the situation altogether, how is all of this conflict about policing, conflict about protests shaped the public's perception of law and the state, overall, of legitimacy, of safety, as you talk about it, of authority?
Emmanuel: It's interesting. I see the tide moving in multiple directions. Certainly, at the height of Operation Metro Surge, the Minneapolis Police Department, along with the mayor, along with the governor, along with the AG, all framed what was happening under legal claims of the usurpation of the police power. The state's police power, the state's responsibility to keep people safe, and framed themselves as the people that are actually doing the good work in the community, in contrast to ICE.
I think, in some ways, they were able to be successful in that. The Strib reported, mid-Metro Surge, that the view of the Minneapolis police went way up in the city at that point in time. Of course, subsequent reporting after Operation Metro Surge came out, the police chief resigned because of various misconduct claims. Then there was also reporting that the police were actually not responding to the things that they were claiming to during Metro Surge.
I think that one of the things I've studied in the past is that when you see the actual coercive violence of policing, of law enforcement up close, that might be legal. There were all these questions about whether or not what ICE was doing, what CBP was doing in the city, was legal, was it legally authorized, with some people saying, "Of course not," with some people saying, "Of course." I think that the fact that you can argue that either way shows that it is a blurry line and it's not clear-cut.
When people confront how much violence is possibly legal, their estimation of the legitimacy of those systems goes down dramatically. We saw that happen in real-time from the Twin Cities and the metro area where Metro Surge began. You got polls of the outlying suburbs and of rural areas that were very supportive of the surge until the surge met them in their own communities. Then what they imagined was just attacking violent downtown Minneapolis was, [crosstalk] "Oh, no, this is my neighbor. This is people that I know."
Oftentimes in policing, we don't have that kind of overlap because policing is hyper-local. It understands its communities. It understands how segregated cities work. It doesn't allow that violence to become diffuse so as to turn the public against it. The federal government did not understand necessarily the context in which they were landing in and how much the city then turned its ire against the federal enforcement apparatus.
In some ways, I think that that's what was the death knell for the bombastic Operation Metro Surge. I'm going to gesture, too, then we got the quiet, less splashy Tom Homan replaces Greg Bovino. Then you just get extraordinarily efficient, quiet deportation in the regular violence that is lawful. Then people tend to turn away from that because they go, "Oh, no, I'm comfortable with that. That's not extraordinary." I see it moving in all sorts of directions simultaneously.
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 podcasts, and 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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