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Unpacking Title 42 with Thomas Saenz: podcast and transcript

Chris Hayes speaks with Thomas Saenz, president and general counsel at the Mexican American Legal Defense Fund (MALDEF), about what's going on at the US-Mexico border and the effects of Title 42 enforcement.

Title 42, a decades old and rarely used public health order used to bar people with medical conditions from entering the country, revived by the Trump administration, enables immigration authorities to swiftly expel migrants to Mexico or their home countries. The enforcement of the policy, which also bars individuals from seeking asylum, continues to be met with skepticism by immigration advocates and public health officials. The Biden administration and the US Centers for Disease Control and Prevention (CDC) recently announced plans to end Title 42 by May 23rd, now that vaccines are widely available. But the fate of the policy remains in limbo because of Republican-backed lawsuits and opposition to its cessation. Thomas Saenz is president and General Counsel for the Mexican American Legal Defense Fund (MALDEF). Saenz joins WITHpod to discuss the role of misinformation in the characterization of migrants, immigration and refugee policy reform and the implications of a potential continuation (or end) of Title 42.

Note: This is a rough transcript — please excuse any typos.

Thomas Saenz: The end game is to get legislative policymaking that is not infected by racism or demographic fear, that is being derived for the long-term interests, not just of the United States, but of our relations with other countries and peoples around the world, and that better reflects our constitutional values. And frankly, we've never had that.

Chris Hayes: Hello and welcome to "Why Is This Happening?" with me your host, Chris Hayes.

One of the weirdest polling results that you will routinely see these days is when you ask people their top issues, there's some that are up near the top that you would want 100% expect like inflation, for instance. Like, yeah, inflation is 8%. Inflation is the highest it's been in 40 years. Inflation hits all kinds of people, like that makes complete and total sense.

And Americans would say like the number one issue for me right now is inflation or the economy. The number of people who would say COVID or the pandemic has dropped quite a bit as we've gone through the pandemic. But obviously, during previous times, that would be near the top. Education, obviously, important issue, people that particularly have kids in school.

One of the issues you will see near the top in every list is the border, the border, the border, the border, poll after poll after poll. And I got to say like, to me, this one is not like the others about that. I mean, again, everyone has got to buy stuff, so they deal with inflation. Everyone operates in the economy. Everyone operates in a world in which COVID is a possibility. A lot of people operate within the educational system.

Things about the border might be bad, or they may be good. But when we call the border, we're talking about the southern border. It's a relatively small patch of the country that really doesn't directly affect folks in some attenuated way. You can make the argument that like, "Oh, increased immigration does this to wages," or does this to whatever. But, like, the border specifically?

Now, the reason for that is that like if you watch Fox News, they are showing you border footage constantly. Like, I cannot emphasize enough how much, and this started back in 2014 when we first saw the first big sort of wave of migrants coming up from Central America seeking asylum in the U.S. And they have beaten the drum and they've beaten the drum, and if there's a caravan, they go send someone down to South America to embed with them and do live shots as they walk up, "They're coming, they're coming, they're coming, they're coming." I mean, this is constant, and complete, and total ceaseless propaganda about the invasion. That is driving a lot of politics in our country.

Then there's like the thing that's actually happening at the border, which is complex, which is not simple and doesn't have actually, I think, like super clear-cut solutions. In fact, it’s like quite thorny to solve in like a humane and ordered fashion. And so, I just thought that like there's a weird asymmetry.

Fox News watchers and conservatives get a ton of information about the border, which is basically hordes of undesirable, non-American, particularly black and brown people are essentially invading the country. Like a zombie movie, they are going to take it over and they will drown you under a tidal wave of non-whiteness. That’s basically the message.

Liberals don't get the same stuff on the border because it's not like activating the fear sensors. But there's a lot going on there and some really, really, really messed up stuff has been happening. And so I thought today, we would take some time to talk about it. What is going on the board right now?

So we're speaking with Thomas Saenz, who's the President and General Counsel of the Mexican American Legal Defense and Educational Fund. Of course, they do all kinds of interesting civil rights and impact litigation. They have been extremely active in a variety of lawsuits, contesting some of the border policies that have been held over by courts of the Trump administration. And I want to sort of dive into what the latest is there, what's happening in the border, and how to kind of untangle this sort of accrued cruelty and reactionary nature of border policy at this moment. So great to have you on the program, Thomas.

Thomas Saenz: Thank you, glad to join you.

Chris Hayes: Let's first start with just setting the table here, because I do think it's worth being clear-eyed about the fact that there has been an increase in the number of people who show up at the southern border, seeking asylum specifically, and that in the last eight years or so, it's not a new phenomenon, but it is in a different category in the last, say, eight years than what came before. Is that a fair characterization?

Thomas Saenz: I would say that is a fair characterization. Largely, we have seen world conditions that have increased the flow of refugees, particularly in recent years in the Western Hemisphere, and that drives a change in what the migration flows at the southern border look like.

Now, that's been exacerbated, as you know, very recently by other refugee-creating conditions around the world, because the southern border ends up being an access point for folks from around the world who are seeking refuge. So it is the fact that world conditions dictate changes in refugee flows. And those flows have their most direct impact on the United States these days at the southern border.

Chris Hayes: When you mentioned global refugees, I mean, we've done stories on NBC about Ukrainian refugees who are at the southern border. And I think it's probably useful to talk about the Ukraine example because I think it captures some of the elemental aspects of asylum, right?

So you've got Republicans flying to Poland to sit down with Ukrainians who have landed on, touchdown on Polish soil and basically are seeking asylum under both domestic Polish law and international law, and then flying back to the U.S. and talking about the invasion at the southern border, like within the same week, right? Just sketch out both the law and logic of asylum as a feature of American and international law.

Thomas Saenz: So asylum is a feature of American and international law that is designed to protect those who are fleeing persecution in their home country. It is an element of a broader refugee policy that recognizes the way that societies are turned upside down by developments, whether those are internal to a country or external as may be the case in Ukraine. It is a recognition that sometimes migration is an emergency and a necessity, and that countries that are receiving migrants who are facing those urgent, necessary migrations are to receive them in a manner that is reflective of humanitarian impulse that is a broader in time.

In a moment of any change in the world that causes migration, folks’ reactions might be more dictated by anxiety and fear of change. So we want to have policies that are longer term in nature and in established humanitarian practices to try to determine where claims of the need to migrate urgently and of necessity are real. In most cases, they are real. But certainly, nations are allowed, as United States has, to put in place adjudicated policies to determine whether the need is real, and if it is real, to honor that need.

Chris Hayes: Right. So the technical term is "credible fear."

Thomas Saenz: Yes.

Chris Hayes: And that's the sort of first gateway for people that show up, do you have a credible fear? I want to sort of play devil's advocate for a moment just to elicit your argument, because there's immigration hawk arguments about this.

Now, I think underlying a lot of it, particular Stephen Miller is and he's been clear about this in past statements, like he wants to shut down immigration in the country. So legal-illegal, like it doesn't really matter. There's no like sophisticated take about this specific problem with the asylum. It's like he has been very clear he wants to preserve the demographics of the country as they are, which is a majority white country. And he does not want that to be tipped by lots of immigration.

Thomas Saenz: So I would just say the notion that demographic change should somehow dictate immigration policy has absolutely no place in asylum and refugee policy in the United States or around the world. That's not a legitimate basis to determine what your policy should be, your fear that somehow the composition of your country will change.

Now, as you know, Stephen Miller is not unique. And the United States is not unique. We see it in Europe as well, that sometimes fears of how a country's population may change, dictate changes in policy. But I think we should start from the standpoint that that is actually directly contrary to the whole theory of having an asylum refugee policy around the world.

Chris Hayes: So here's the second argument, which I think is less sort of like facially racist, but is a little more technical, which basically like, okay, we created this asylum regime in the wake of World War II, specifically, very impacted, of course, by the fact that many Jews were turned away from many places, including famously the U.S. with the St. Louis ship that turned away a boatload of Jewish refugees, many of whom were then murdered by the Nazis.

And in the wake of that, a recognition that there's a fundamental human right to seek safety when your life is threatened where you are. And the ultimate example of that, of course, being Jews fleeing the Nazis.

And the argument of sort of skeptics of the modern incarnation is basically this. Look, it's rough going in El Salvador right now. It's rough going in Honduras. Those are societies that have high levels of homicide and gang violence. There are societies that are considerably poor than the U.S. But fundamentally, people fleeing that are doing something that looks more like regular immigration, that we have a system for.

Then the thing that we created the asylum system around, which is Jews fleeing the Nazis or Ukrainians fleeing shelling in Kharkiv, or South Sudanese fleeing Civil War, right? That there's a kind of like category error and a little bit of like loopholeness happening. And this is the argument the hawks make, right?

There's this kind of loopholeness happening, where these folks who, sure, God bless them, tough life down there. But like lots of people got a tough life, and we can't let everyone in. And this is basically a kind of taking advantage of asylum law to sort of get in a loophole, when like really what you're facing is like you live in a place that's more dangerous and more poor than U.S. and you want to leave, we have a regular system for that.

Thomas Saenz: I think the problem is that the demographic change element is still a big part of that. There's still a lot of assumptions based on race behind those arguments. The assumptions, if I could boil them down, are basically that if you're from Latin America, you're an economic refugee, full stop period. If you're from the other hemisphere, you may have a legitimate claim to a danger, a persecution sufficient to enable you to enter the United States.

We do have a double standard. It's in our law. It's baked into our law. We treat refugees from the other hemisphere differently than we do refugees from the Western Hemisphere, from the American hemisphere. And that's baked into our law and it too often comes out in these arguments that you've laid out.

But these are also arguments that center on the United States, and that's what also incorporates demographics. Incorporated in those arguments is a sense of who the United States is. Whether that's a reflection of today, or 50 years ago is a whole another issue. But they're centered around the United States and how the country experiences immigrants arriving in this country. It's not a perspective based on the asylee or potential refugee himself or herself. Because I'm not sure you would find a lot of distinction in the experience of folks when the danger is from gangs and killings outside of the justice system versus a war, the danger to you and your child is still palpable. It's immediate and it's extreme, regardless of the circumstance.

So if you have an asylum refugee policy that's built around the experience of those seeking to migrate, which it should be. Remember credible fears about that person, him or herself, not about how the United States then receives that person or their colleagues from their country of origin. So that's the problem with argument that you've laid out. Beneath it, after more layers perhaps than the other, is still this issue of how does the United States itself receive large numbers of migrants from these particular countries, i.e. its demographics once more.

Chris Hayes: You noted this and it's also important to note that like it is obviously not the case that even under Barack Obama or any presidents before that, you don't just show up the border and say, like, "Whew, it's bad out there." And they're like, "Come on in, sir." Like, there is the credible fear process, which is precisely there to adjudicate with an interview and some evidence like real asylum claims.

The other argument that's made here, right, is that under the regime, again, this has all been suspended. Basically, none of this is happening now, which is what we're going to get into. But I wanted to just sort of create the sort of backdrop. People show up, they say they have a credible fear, maybe they do, but we say, "Okay," and then put them on a bus and they go to see a cousin in Los Angeles. And then we never hear from them again. And basically, we have totally failed to actually do the adjudicative procedure that you say that distinguishes real refugees from economic migrants or people who just want to come to U.S.

Thomas Saenz: The truth of the matter is that's an overstated. As you began, you talked about inundation with misinformation, disinformation, through particular media outlets, but it also ultimately stems from some of our political leaders.

And Donald Trump simply lied repeatedly about our immigration processes. They're in place to allow a reasoned determination of that credible fear. And that takes time. It takes time because often these folks don't have immediate recourse, the evidence to support their claims of credible fear. and they ought to have, under our laws, the opportunity to collect that evidence where possible. And they also should have the good advice of folks who understand the United States immigration legal system, they don't always get it as you know. That's a flaw in our system.

But where they do get it, there ought to be and they ought to be given every chance to obtain that legal representation. Then those legal representatives should also have the chance to develop the most convincing case in support of a credible fear determination. In fact, the amount proportion of non-appearances is not what is portrayed to be by those from that perspective. It's actually quite minimal over time from that perspective.

But there's no question that this is a time-consuming process. And it's particularly time-consuming when you put in place obstacles to fair adjudication, which we saw under the Trump administration. When you start putting in place a thumb on the scale here and there, with respect to these determinations, that actually slows the process down even more. And so, you do end up for both legitimate and sometimes illegitimate reasons, with a process that takes longer to determine credible fear than many would like.

But in the end, if you have a belief in the process and ensuring due process for everyone in making an attempt to show credible fear, then these false statements about non-appearances, and gaming the system, and eluding the system are exposed as false, which they are.

Chris Hayes: I think it also comes down to the sort of assumption. Well, I mean, obviously, there's intense and inescapable set of racial assumptions and xenophobia, and it’s woven deeply into this, right? But it also strikes me because this is a very effective political bludgeon. It is. I mean, I covered it. I saw it happen to Barack Obama, who engaged in all sorts of like pretty awful policies in that 2014-2015 period, including family detention, all kinds of stuff. I think some of it comes down to like what your assumptions are about what makes you believe.

I mean, it's been striking to me like there are people that stay behind in Kharkiv. There are people who are staying behind in Kyiv. I mean, the majority in Kyiv stayed behind. Like, it takes a lot to shake a person from their home, a lot. And I think the people that I know that work in your line of work, who work with immigrants, that is the overwhelming experience and takeaway that they're coming from, which is people don't want to leave their homes.

Thomas Saenz: That's a natural human impulse.

Chris Hayes: Yeah, the brunt. So this assumption of like they're trying to get over and it's all this big, like, this is not a ride at Disney, the thousand mile trek up through Central America on a train nicknamed "The Beast," where rates of sexual assault for women aren't just astronomical, and the threat to life and limb, and not to mention, psychological health. I mean, no one is doing this on a lark.

So like, I do think there's such a mismatch between the people that work with actual migrant showing up and what their life experiences, and what has gotten so bad that it has driven them on this very dangerous journey. And those watching the Fox News would be all like trying to cut the line and they're all just coming.

Thomas Saenz: This is in part why people have a different perspective of immigrants, individual immigrants, and immigration.

Chris Hayes: That's a great point.

Thomas Saenz: So much of folk’s views about immigration are fed by misinformation, disinformation, like the type you described. But when they actually get a chance, like the folks you've mentioned, who work with these migrants to talk with folks about their experience, about what drove them to take that arduous journey to come to the United States, there's much greater sympathy and understanding. Because at bottom, these are common human impulses.

Human beings crave family. And when you stay in your home country, you're going to be with family, and broader family than just your immediate family. And people crave stability. So if they were able to have a stable, family-centered existence where they are, most people would choose that. The vast, vast majority of folks would choose that.

Nobody is choosing to undertake a journey that is dangerous, and arduous, and depleting for reasons that are flimsy, or reasons like taking advantage of the United States system as Donald Trump tries to portray all of these immigrants, that they're doing this simply to take advantage of the plethora of opportunities in the United States.

It's certainly true that most immigrants, and most asylees, refugees do then contribute to our country, take advantage, if you will, of the opportunities, but to serve our entire community, to better us all, to invent new things, to run new things that eventually benefit all of us. So they do make contributions here. But that notion of taking advantage is not a basis under any remotely credible study of why people come to the United States. And that's whether they are motivated primarily by fear or motivated by economic deprivation in their country of origin.

Chris Hayes: Yeah. And that point about sort of individual immigrants versus immigration, like, again, it gets back to just how dehumanizing. Again, I really do think Fox has a huge role in this. I mean, I can't overstate how like despicably dehumanizing the images are. It's always like they're just bodies. It's like a sea of limbs.

It always like focuses on the garbage and the refuse because, yeah, if you're like sleeping out next to the Rio Grande, like there's no place to put your garbage. Like, go to Central Park after a concert, like that's what it looks like when a bunch of people are in a place. But just these like zoom in and like, "Look at these filthy disgusting." I mean, really like what they do visually really is like --

Thomas Saenz: Shadows, use of shadows all the time, so you don't actually see a human being, you just see the lurking shadow. It all falls into long-standing tropes when it comes to dehumanizing someone whom you want to oppose. It’s propaganda, I think, as you characterize it. It's a fair characterization of what it is.

Chris Hayes: We'll be right back after we take this quick break.

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Chris Hayes: So you've got this uptick that happens driven by world events, and particularly driven by what's called the Northern Triangle, which is Central American countries, particularly Guatemala, Honduras, and El Salvador, where, I mean, if you look at like per capita homicides, right, you've got these countries up way near the top, and in some ways are kind of in a category of their own. These are some of the violent places to live. Despite the fact they don't have like declared civil wars or declared insurgencies, they're very, very violent places.

This uptick happens. We start seeing it in 2014. Trump, obviously, marshals this for his election. He talks about building the wall, which is always sort of a ludicrous solution to it. It never actually really happened. Also, it's not a solution. So I mean, it's all sort of this kind of token. But what they find is no matter how like mean and tough you are, like people keep coming. Because, again, they're not coming for any other reason than they feel they have to.

Thomas Saenz: Right.

Chris Hayes: And so, they keep trying to ratchet up the screws of how cruel we can be. Can we be cruel enough that given the choice between your son being recruited into a gang or murdered in the street and what we will do to you, you will choose the murder in the street. That's the decision they start to go towards. And of course, they land on kidnapping children as a way of doing that, right? This is a disincentive. We will literally steal your child. You might never see them again. So stay there. This, obviously, we've covered.

Then we get to two programs that basically I think Stephen Miller and his cohort come up with, that effectively work in closing off access to asylum at the southern border. And it’s the Remain in Mexico policy and Title 42. So Remain in Mexico happens first, and can you just explain what the Remain in Mexico policy is and what it does?

Thomas Saenz: Well, essentially, it makes Mexico complicit in these policies by forcing folks to remain there rather than entering the United States while their initial cases are determined by those who are under our process and power to make those initial determinations. So instead of processing folks and having them in the United States while an initial determination is made, they're required to remain in Mexico while their turn comes up. Which then introduces other problems of who determines whose turn it is, who determines who gets higher in the line, who doesn't.

It really introduces a greater degree of arbitrariness to a process that is supposed to be demonstrating humanitarian provisions of due process. Instead, we put folks at danger. We put them at risk of arbitrary removal from the line or delay in line. And we subject them to deprivations of the kinds of basic human needs that we would not expect to happen in the United States and didn't happen. Generally speaking, though, there are always issues about detention, but we didn't expect to happen as they were previously were in the United States while those initial determinations were made.

Chris Hayes: So they strike this deal with the Mexican government to do this. And it means that people have to wait the adjudicated process again in this like really dangerous limbo. I mean, there's just horrifying stories. Human Rights Watch, other immigrant groups have interviewed people.

There's kidnapping and bounties, assault, murder, sexual assault. I mean, these people are essentially sitting ducks. They don't have ties to the border towns in Mexico where they are waiting. They're essentially warehouse. People know that they're probably traveling with some cash. There's no friends or family around. Presumably, they don't have connections here. So it's been a humanitarian disaster for these people.

But I don't understand, the thing I've never quite got is why did the Mexican government go along with it, specifically Andres Manuel Lopez Obrador, AMLO, the great leftist hope of Mexico, who basically like does a handshake deal with Donald Trump to basically be like, "Yeah, we'll detain these people for you."

Thomas Saenz: Well, I think he had to believe he had no choice because of the power disparity between the United States and Mexico. And Donald Trump's apparent willingness demonstrated by his, quote-unquote, "foreign policy," whether it deserved the term or not. With respect to every country in the world, he was willing to overuse his power to punish countries that he disagreed with, and that he felt there was a political advantage domestically to targeting. So I assume that the president of Mexico concluded the potential cost to Mexico were simply too high under such a reckless leader. I mean, it's not at the same level, but it's much like what Ukraine faced with Putin. You've got someone who's demonstrated megalomania. It demonstrated an inattention to any limitations on his authority, who's demonstrated a willingness to take advantage of strength over a country, a neighboring country that is weaker in power. And you face a tough choice. Now, whether he made the right choice or not, I think is subject to debate in Mexico and probably will be debated over any number of years. But I think that he felt he had no choice in this circumstance.

Chris Hayes: So that radically and dramatically transforms what's happening in the border. But the kill shot, the thing that effectively shuts down the U.S. asylum system is the invocation of Title 42 when the pandemic happens. What is Title 42 and what does that do?

Thomas Saenz: It's essentially a very, at this point, aged law in the public health context that is designed to permit basically the closing of borders were necessary for public health reasons. Of the Trump administration's application, it was clearly inconsistent with what it was designed to do, and was clearly not actually motivated by public health concerns.

And that illegitimate beginning of the invocation of Title 42 is something we continue to deal with even today as the Biden administration struggles to attempt to eliminate Title 42. It was illegitimate when it was first invoked, has no legitimacy today even less, because the pandemic has waned. But in the end, it was a misuse of a public health statute.

Chris Hayes: Also, I mean, as evidence of the bad faith here, there is established reporting that Stephen Miller is trying to use it prior to COVID. He's trying to use it around measles. He's finds Title 42 before COVID happens and is actively attempting to use it as a means of shutting down the southern border to asylum seekers, and then gets a pandemic, which is an incredible gift from his perspective of shutting down the border.

At the granular level, like what does Title 42 mean? If I show up, a 25-year-old from Honduras, and I've made the trek and I'm at the border, and I'm apprehended at the border and I say I want to seek asylum, like what does Title 42 mean?

Thomas Saenz: It means you can be turned away. But of course, what we know is there were exceptions. Those exceptions may have had legitimate bases, in some cases, less than legitimate bases. But effectively, man, you would be turned away and told the door is closed now for public health reasons. When it reopens, then there may be a renewed possibility.

But the fact that it's grounded in public health is the ongoing problem. It's a 1944 law. The nature of transnational interactions has changed dramatically in the 80 years since then. And the notion that you're going to have any impact on public health, whether it's COVID-19, or as you suggested, measles, or anything that predated that, the notion you're going to have any public health impact when you're only closing the southern border. You're not restricting other elements of transnational interaction or personal interaction is just ludicrous.

Chris Hayes: Well, I mean, we did close a bunch of stuff, right? I mean, obviously, it was bad faith from the beginning. But on the merits, it's a way more defensive policy in March 2020, when there's a whole bunch of countries you can’t enter from. I mean, there's all kinds of travel restrictions. Like, again, it was always done cart before the horse. It was always done by bad faith to try to like achieve this end. But even if you put that to the side --

Thomas Saenz: It's absolutely true. If you give them the benefit of the doubt and I think at the end of it, even if we were in March 2020 or April 2020, you still have to see how this is an illegitimate application of Title 42, which you should do is basically restrict all contact, whatsoever, which again it's much more justifiable in the midst of an uncontrolled pandemic than it is prior to that, or certainly than it is today. I think that's why the ongoing discussion of this, at this late date, is really inexplicable.

Chris Hayes: I mean, I'm sorry, it's ludicrous.

Thomas Saenz: Yeah.

Chris Hayes: I mean, we are in a situation now where, let me just put a fine point on this, every Republican wants to tell you that pandemic restrictions are ridiculous, that they are tyrannical, that the pandemic is over, that you need to suck it up. They don't want masks on planes. They don't want masks in public places. It's over. It's over. It's over. There is one place in America where it still exists, which is this narrow strip along the Rio Grande and then we need Title 42. And it's like a ludicrous, indefensible, completely bad faith, outrageous, preposterous position.

Thomas Saenz: Going back to what we discussed before, this is hypocrisy that you've described, that is rooted in racism. Now, of course, every one of those who takes that position is going to now conclude I call them racist. That's not what I'm saying. I'm saying that that hypocrisy --

Chris Hayes: Yeah.

Thomas Saenz: -- that ability to say this is a unique circumstance is rooted in the demographics of who's coming to the southern border.

Chris Hayes: Correct.

Thomas Saenz: So that it is rooted in racism as so much, unfortunately, of our immigration policy, historically, on an ongoing basis in this country is rooted.

Chris Hayes: We'll be right back after we take this quick break.

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Chris Hayes: Okay. So Biden inherits this and I don't know if he makes explicit Title 42 promises, but he definitely makes Remain in Mexico promises, and says, "We're going to repeal it. We're going to go back to the way it was before Remain in Mexico," and he does it. I think people again don't appreciate this. Like, they said, "We're going to do it." And they repealed Remain in Mexico. And then what happened?

Thomas Saenz: So we get a court system that starts taking aggressive action that we didn't see under the Trump administration's even more extraordinary actions in this arena and others. And that's what's, in my view, from my profession, quite inexplicable. Throughout the Trump administration, we saw a reluctance, particularly on the Supreme Court level, to challenge federal executive authority, particularly when it came to immigration issues, most famously in Muslim Ban 3.0, when it went to the Supreme Court.

But we also, just from a legal perspective, saw a reluctance on the part of the Supreme Court, indeed an aggressive attempt to prevent district courts, single judges from implementing nationwide injunctions.

Chris Hayes: Which did happen a lot, right?

Thomas Saenz: Yes.

Chris Hayes: So there was a lot of stuff. I mean, just sort of two things here, just for people that are not tracking this, right. The Trump administration implements both Title 42 and Remain in Mexico through executive fiat. These are our executive powers. They survived court challenges. They're allowed to go into place in both cases.

Now, there's a ton of stuff that Trump tries to do, particularly around immigration, right, that does get struck down and enjoined by district courts. And I was there at the Brooklyn courthouse when the travel ban got struck down and enjoined. But then it works its way up to the Supreme Court where the conservative Supreme Court does not like the single district judges essentially making policy for the whole country, right?

Thomas Saenz: Yes.

Chris Hayes: What has happened now is it's a crazy one-way ratchet. These uses of executive authority to close the border through Remain in Mexico and Title 42 are allowed to hold. When a new president duly elected comes in, inheriting presumably the exact same executive authority of his predecessor says, "We're going to undo them." You have district court judges, saying, "You can’t on the Remain in Mexico policy."

Thomas Saenz: And saying you can't in a way that affects the entire country. So that is a problem there. It does appear to be, at least at this point. It’s always a developing story in the judicial system, a double standard, that does create a ratchet for policies established under the prior administration. But that further constrains the current administration from exercising what appears to be clear executive authority when it comes to policies like Remain in Mexico or Title 42.

So that is very troubling from the perspective of the legitimacy of the judicial system whenever you have what appears to be a double standard, and it is a double standard. The public charged regulations adopted by the Trump administration were held up by a district court, I believe, in Illinois. And the Supreme Court came in and used its so-called "shadow docket" to lift that, to stay that injunction and precisely because of hostility to nationwide injunctions imposed by a single judge. But that's what we have going on today. And there doesn't seem to be the same reaction from higher levels in the judicial system than we saw previously.

Chris Hayes: Like we saw with the mask decision, which by the way, is completely bonkers if you read it, because it says the CDC never had any authority to ask people to put masks on a plane, like not just now, but never. But there's just very obvious forum shopping, where you go and you find a judge who's going to be sympathetic in your case and you get a nationwide injunction on this issue. And that's what's happened.

And I should also note, and I would love to hear your thoughts on this, it's not just that you, Joe Biden, having recently been elected president, and obviously, being entrusted by the Constitution and our system of government to oversee the execution of the laws and the faithful execution thereof, through DHS, et cetera. You also now have to engage in foreign policy against your will, with the government of Mexico, which "I, district court judge, I'm instructing you, President Biden, to go have a talk with AMLO to get this thing going again."

Thomas Saenz: I think that the notion of judicial shopping is actually behind some of the hostility to nationwide injunctions. They'll never say it because they don't acknowledge that forum shopping occurs. But that's part of what's behind the hostility to nationwide injunctions. And it was far from clear, just given the size of the courts, where the cases were filed under the Trump administration, that there could be any forum shopping when it came to what was then being stayed by the Supreme Court, which you described here is an indication pretty strong that there is actual forum shopping going on. And still we're leaving these nationwide injunctions in place.

It is an extraordinary development. But what I have to say it’s still ongoing because there still is an appellate process, obviously, for all of this. The dislocation, the disrespect for the judiciary, all that's happening now because of the double standard, the problems with preventing the Biden administration from pursuing policies that they arrived at in we should say very deliberate fashion. You and I are talking here, a year, close to a year and a half into the Biden administration. It's not like Joe Biden came into office and immediately said, through an executive order on day, "All on Donald Trump, we're going to do ABC, right?"

Chris Hayes: Yeah, it wasn't --

Thomas Saenz: Exactly.

Chris Hayes: -- like garbage piece of lawless scribbling that every lawyer would result to kickbacks and decides. This was done sort of I's dotted T's crossed. So just to be clear, so the district judge enjoins it, right? So the injunction is pending the appeals process. So MPP is still in place. Probably Supreme Court will make an ultimate call about whether you can or can't appeal it, which it's crazy to think that they will say you can't.

Thomas Saenz: Yeah. I think it's more a question of how, right?

Chris Hayes: Right.

Thomas Saenz: So the Supreme Court may weigh in on the Biden administration having to go through some more involved process to do this. Again, that's from the beginning, a little questionable, given how much time was put in to arriving at this decision by this administration in comparison to the prior. But the most that the Supreme Court could do is say you didn't dot the I's and cross the T's, and you need to do so. We'll see whether they’d do that.

Chris Hayes: Right. So that was argued recently the court Biden v. Texas. They will issue a decision about what is and isn't allowed under the what are called the "migrant protection protocols," or so-called Remain in Mexico. So Title 42, where are we on Title 42?

Thomas Saenz: So the Biden administration would like to eliminate it, but again, has been blocked at this point. Obviously, there --

Chris Hayes: By federal judge?

Thomas Saenz: Yes. Obviously, there are political implications, right, of a lot of this. We've seen a lot of it played out.

Chris Hayes: Let me just say, obviously, it's different judges, but the federal judiciary at the district level simultaneously stopping the administration from revoking Title 42 and requiring them to stop having masks on planes at the same time is ludicrous. Like, obviously, those two things together on its face, not the law, I'm just saying, like, at a common sense level is ludicrous.

Thomas Saenz: I agree. And I think that what we're seeing is a lot of action that doesn't make a lot of sense, especially in light of recent history. With respect to the masks mandate, as you've suggested, the fact that it's been in place for so long, and now all of a sudden, we have and rendered decision about the power and authority of the CDC with nationwide implications is really extraordinary. There's no way to describe it, but extraordinary in the history of the judiciary, at least the recent history of the federal judiciary in this country, and that's troubling.

But this notion of ratcheting Trump policies in place really is one that has deep roots in other elements. The Trump administration attempted, you may not recall, but through contracts with certain border states that were receptive, it attempted to embed its policies over a longer period of time after it was no longer in place through contracts with states like Arizona and Texas. With respect to immigration enforcement, contracts effectively said the federal administration must consult with Arizona and Texas before it makes significant changes in immigration enforcement. That ultimately expired before they had much of an effect, but it had an initial effect.

There were judges who said, "Yeah, you got to follow that contract." But that notion of embedding Trump administration policy is totally anti-democratic. Once you're voted out of office, it means your policies are voted out of office as well.

Chris Hayes: Right.

Thomas Saenz: It doesn't mean you get to have an enforceable contract that says, "My policies outlive me in the White House." But that notion is, unfortunately, part of the very damaging legacy of the Trump administration now being made evermore clear and unfortunately, supported by elements of the federal judiciary.

Chris Hayes: So I mean, not to get to legal nerdy, I mean, the conservative lawyer on my shoulder is telling me that there's the case of DACA, of course, where there was immigration policy done by executive fiat, challenged in the court upheld, and even though Trump wanted to get rid of it. So what do you say about that? I mean, I would argue that, like, what you have present there that you don't have here is what's called the reliance interest, which is that there's actually like a ton of people who stick their lives on this.

Whereas, like, there's no one who's reliant on the border being shut. I mean, I guess the state governments of Texas and Arizona claim they have a reliance interest in keeping the borders shut, but it doesn't seem symmetrical.

Thomas Saenz: That's a completely undefined and unsupported reliance interests when you talk about states themselves. It's the same basis for --

Chris Hayes: Right, that’s a weird argument.

Thomas Saenz: It’s the same basis for standing that Texas is using to challenge DACA itself these days. But Biden administration in place wants DACA to remain in place, but it's being challenged in federal court by Texas asserting some injury, some broad injury to Texas society by the continued existence of DACA. That kind of reliance at that level of states is really not a par with reliance interests of individuals as was invoked by Chief Justice Roberts in the DACA decision, as you described.

So it is a difference in the reliance and its impact on people. And all Chief Justice Roberts required was that there’d be fair consideration of those reliance interests, and that it clearly not occurred in the Trump administration given how the decision was both made and then implemented. So that is the distinction for those who come up with the DACA cases, the response to what's happening today.

Chris Hayes: I mean, when we take a step back, so just to be clear on where we're tracking, right, you've got these two policies put in place MPP or Remain in Mexico, Title 42. Biden administration wants to repeal both of them. They have been blocked by judges from doing so. So they remain in place against the will of the administration that was elected by the American people. And yet, what's crazy is even with that in place, the story from the right-wing media and the story from Fox News is like we're being invaded. And it's like you've got the policies you want.

This to me is really like the crux of it. And not only that, I should say that, politically, you have Democratic senators coming out. Raphael Warnock, Jon Tester, Maggie Haason, Kyrsten Sinema saying to keep Title 42. The only room where the pandemic will go forever is at the border. That's the only one. Like, what do you make of the politics of that?

Thomas Saenz: Well, there's a number of things going on here. First of all, the absolute failure of the Congress to act to reform our immigration system in the last 30 years continues to be an issue here. So some of these folks are clearly grasping for whatever's available to try to address issues in a better system, particularly with a filibuster in the United States Senate limited or eliminated, would be dealt with through the legislative process, including debate about what the policy should be in and how it ought to be implemented.

We simply don't have the ability, on issues like immigration, to do that in this country today entirely. Because this issue has become so partisanized, particularly under Donald Trump, that there is unified opposition from the Republican Party to doing anything productive to legislatively change policy.

But second, and I have to say it, there's plenty of hypocrisy today and throughout our history when it comes to immigration policy. When it comes to these issues, we can ignore United States complicity in creating the conditions in the Northern Triangle that now drive migration to our southern border. We can't ignore, but we do. All the time constantly across the political spectrum, we ignore that these extremely violent societies were contributed to by our own policies, including our own immigration policies.

Now, how do I know that we ignore it? Because we continue to have folks who argue that we should be using deportation removal as an element of criminal justice. But that fails to recognize it when we did that in the ‘80s and ‘90s. And we're deporting Central Americans who had come the United States, has been really inculcated in the gang policy, the gang will Life in the United States were then being deported back to the countries of origin and replicating what they had experienced in the United States. That contributes to the conditions that then decades later, drive folks to come to our country.

So part of our hypocrisy is failing to recognize our own complicity, and specifically failing to recognize that there are long-term domestic implications for what we do with immigration policy. We're a country that treats removals and deportations as we get to wipe our hands of it. It's no longer our problem. But this demonstrates that that is a short-handed perspective, it still remains the overwhelming perspective of policymakers in this country.

And the final hypocrisy, of course, is so many of these folks failed to recognize the racism inherent in our policy, and the racism inherent in their perspective about using some of those policies to address immediate concerns.

Chris Hayes: Just for folks that don't know the background you're alluding to, I mean, MS-13, which is, of course, the most notorious Central American gang was born in Los Angeles prisons. It wasn't that we didn't import MS-13, we exported it. Quite literally, it was founded among people that we had apprehended and were in our jails who were then sent back to Central America. Like, we exported that gang to Central America. They didn't import it to us. I mean, I think that's one of the things you were referring to here.

Thomas Saenz: Yes. Yes, absolutely.

Chris Hayes: I mean, I guess I don't disagree with any of that. I mean, I guess I wonder like I don't think there's anything as some sort of unmediated unconstructive public opinion. But it does seem like, why are they so scared? Why are Raphael Warnock and Kyrsten Sinema and Maggie Hassan and Jon Tester saying we want Title 42? Like, it draws blood. It draws blood, I guess is the point. The demagoguery around this draws blood.

And figuring out a way around that seems to be a pretty important project, which is not your project necessarily. You're a civil rights lawyer, and you do a lot of different stuff. But from a political level like that, to me, is a huge problem to solve. It is a big problem.

Thomas Saenz: It is a big problem and it's a problem for all of us to solve. It is the successful, though, I will say short-term use of demographic fear to drive voters. So on the right, you have folks who exploit that demographic fear. And demographic fear is basically the concern that the changes in the demographics of the country mean that the country will not look like it does today, that somehow we'll have some wholesale change that will be to the detriment of folks’ descendants, grandchildren, great grandchildren, et cetera.

So there's an element of that in lots of people's thinking. Whether they acknowledge it or not, it's in the back of folk’s minds. So that's exploited by folks like Donald Trump. And he's not the originator of this. This began in the current era 25 years ago in California with Pete Wilson, who exploited an anti-immigrant, Proposition 187 on the ballot to get himself reelected. That was similarly exploited, this demographic fear, by Governor Brewer in Arizona a decade ago with SB 1070 to secure her own election as governor, having acceded to the job when Janet Napolitano joined the administration as Secretary of Homeland Security.

So there are examples of short-term success, including Donald Trump's own election, 2016, by the Electoral College, through demographic fear exploitation. The flip side of that is folks on the progressive side, who fear demographic fear, not wanting to exploit it, but certainly not wanting to awaken it. And that's why they avoid talking about it in many cases, most cases, perhaps. They avoid talking about the growth of the Latino community in particular directly. And in some cases, they go so far as the folks you've cited, who then take positions that are designed to mollify, to keep quiet, not to awaken these demographic fears that are more openly exploited by folks on the other side of the spectrum.

Chris Hayes: Just to sort of push back a little bit on that and not strongly, but I do think like one of the things that I think you mentioned is racism. And again, I think, very clearly that, again, the propaganda is racist, right? But people will say, "Well, look at the Rio Grande Valley, right, predominantly majority Hispanic populations. They're the single biggest swing towards Donald Trump anywhere in the country. It happened in two places, South Florida and the Rio Grande Valley.

And pulling on this and also I spent a fair time on the border, like the Border Patrol are very, very Latino-dominated. And it tends to be a different population than first generation folks from the Dominican Republic in New York City. It's people that have lived in the border area for five or six generations. I guess my only point here is that like I do think sometimes in America, we forget that like xenophobia is a thing and that people can be bigoted against foreigners who even look like them, which is a totally persistent thing that happens.

I mean, when you look at Brexit, like a lot of the Brexit stuff was racially driven. But a lot of it was anger at like Poles and Eastern Europeans who are living there, who are like functionally white. But like they were mad at foreigners. So I guess my point is when people say, "Well, look, Latinos are split on immigration, too, like the Rio Grande Valley," my response always is like, "Well, de novo a completely common human trait of people that fear foreigners or bigoted against them, even if they like physically look like that."

Thomas Saenz: So I think we first have to say, look, the vast, vast majority of Latinos, Latino voters, and within the Latino community, 60% plus of whom are Mexican American. The vast, vast majority of Mexican American voters, polls show this, are against these immigration restrictionists’ policies. So it would be called a landslide in any other community. Too often the Latino community is compared to the black community, which is even more overwhelmingly democratic in voting. But in any other context, when you are consistently voting 60%, 65% for one side, that's a pretty strong indicator where the community is.

But getting to your point, when you're talking about communities that themselves feel completely disenfranchised, disempowered, and face economic and other anxieties, those are communities, the Rio Grande Valley may be a part of this, that are particularly susceptible to seeking scapegoats. And unfortunately, the history in this country is that foreigners, those who are not yet citizens, those are not yet living here, regardless of where they come from are an easy scapegoat.

And so when you have folks who feel so disconnected, that they're casting about for scapegoats, and someone offers up the immigrant, but the immigrant not as an individual as we've described previously, but as a faceless shadow, then that's an easy scapegoat for people to believe in. And that's, I think, what you have happening particularly in the areas where, and this is largely a phenomenon with men, where men feel as though they do not have the power that they believe to be their birthright as men in the United States. And that's true of all communities. But again, I have to emphasize again, Mexican Americans, Latinos are overwhelmingly ---

Chris Hayes: Sure.

Thomas Saenz: -- against Donald Trump and policies like his

Chris Hayes: No. Of course, it’s just striking that the policies we just described, right, Remain in Mexico, MPP, and Title 42 happen on the border. And the place where they happened physically proximate was one of the places in the country that swung the most to Donald Trump. Like, it's hard not to have that go through your brain and try to make some sense of that.

Thomas Saenz: Yeah. And I think all I'm saying is it's less about being on the border and having the experience of what's occurring on the border, and more about pre-existing conditions in border areas, where there is a level of disconnection, disempowerment, feeling not connected, that has deeper roots and that that's what then allows the scapegoat of the immigrant to arise and be exploited in that way. So I think if we're concerned about that phenomena, we should take a deeper look at what are the pre-existing conditions in the Rio Grande Valley and other places where that level of disconnection is so pronounced.

Chris Hayes: What's the ultimate end game here? Because, I mean, part of the problem, I think, is that like, okay, lifting the Stephen Miller executive fiat that have essentially closed the border asylum is the first step, and courts are blocking that, avoiding that. And then it's like the filibuster have enough votes to really reform this, that the whole thing feels so kind of fraught and rickety, what after that?

Thomas Saenz: Well, I think, ultimately, the end game is to get legislative policymaking that is not infected by racism or demographic fear, that is being derived for the long-term interests not just of the United States, but of our relations with other countries and peoples around the world. And that better reflects our constitutional values. And frankly, we've never had that when it comes to immigration and refugee policy in this country. So the long-term end game is exactly that, a political debate that is not infected by racism and demographic fear, but that arrives at policies that reflect our constitutional values.

Now, in the context of asylum and refugee policy, that ultimately means recognizing that we have long had a double standard. If you're a refugee from the Western Hemisphere, you have been treated under our policies dramatically different than a refugee or potential refugee from the other hemisphere. So we got to start there. We've got to then recognize our complicity in creating the conditions that drive these refugee flows, particularly from the Northern Triangle. And we have to derive policies that work for all the countries in the Western Hemisphere that reflect, I think, the enduring values of our Constitution.

Chris Hayes: Thomas Saenz is the General Counsel at the Mexican American Legal Defense and Education Fund, where he leads MALDEF’s national efforts to promote civil rights of all Latinos living in the U.S. That was really edifying. Thomas, thank you so much.

Thomas Saenz: Thank you.

Chris Hayes: Once again, my great thanks to Thomas Saenz. That was really, really clarifying and illuminating. And I'm happy we did it because I think there's a lot of confusion about what is going on exactly.

We get to talk to a lot of really smart people on the podcast. So I wanted to take a moment to give big congratulations to this year's Pulitzer Prize honorees, some of whom we've had on WITHpod, including New York Times investigative reporter Andrea Elliott, who won for her book, "Invisible Child: Poverty, Survival & Hope in an American City." We discussed that on the podcast.

Congrats to New Yorker contributing writer Anand Gopal, who was a finalist for his feature writing "The Other Afghan Women," which includes some unbelievable reporting from his time on the ground in Afghanistan, which we discussed in a WITHpod episode. And also a shout-out to New York Times columnist Zeynep Tufekci, who is a finalist for her numerous columns on the pandemic and American culture. We had a conversation about that with her on the program as well.

You can hear all those conversations on WITHpod, wherever you get your podcasts. As always, send us feedback. We'd love to hear from you. Tweet us with a hashtag #WITHpod, email withpod@gmail.com. And because we're always doing new things here at WITHpod, you can now follow and check us out on TikTok by searching for WITHpod. Lots of fun stuff coming.

"Why Is This Happening?" is presented by MSNBC and NBC News, produced by Doni Holloway, Tiffany Champion and Brendan O’Melia, engineered by Bob Mallory and features music by Eddie Cooper. You can see more of our work, including links to things we mentioned here, by going to nbcnews.com/whyisthishappening.

Tweet us with the hashtag #WITHpod, email WITHpod@gmail.com. “Why Is This Happening?” is presented by MSNBC and NBC News, produced by Doni Holloway, Tiffany Champion, Brendan O'Melia, engineered by Bob Mallory and features music by Eddie Cooper. You can see more of our work, including links to things we mentioned here, by going to nbcnews.com/whyisthishappening.