Federal constitutional violations threaten foundation of democracy itself, says Portland legal scholar

A federal judge in Portland issued a temporary injunction in a case brought by the Innovation Law Lab Wednesday. The case challenged the ICE policy of arresting immigrants and U.S. citizens without warrants and without due process. The injunction says the federal agents must stop arresting people without warrants unless there is a likelihood of escape. Challenges to the practice have also prevailed in Washington, D.C. and Colorado.

From warrantless arrests to unlawful use of force to arresting of journalists and other violations of civil rights, Portland constitutional law scholar Steve Kanter says these federal unconstitutional actions threaten democracy itself. Kanter joins us to put these actions in the context of the fundamental freedoms guaranteed by the First, Fourth and Fifth Amendments. Jordan Cunnings, legal director of the Innovation Law Lab, also joins us to share details about the federal court hearing on warrantless arrests in Oregon.

Note: The following transcript was transcribed digitally and validated for accuracy, readability and formatting by an OPB volunteer.

Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. A federal judge in Portland ruled yesterday that U.S. immigration agents in Oregon must stop arresting people without warrants unless they can show that there’s a likelihood of escape. The preliminary injunction by Judge Mustafa Kasubhai came in response to a case brought by the Innovation Law Lab. It followed similar cases in Colorado and Washington, D.C. Jordan Cunnings is the legal director of the Law Lab, and she joins us now. It’s good to see you again.

Jordan Cunnings: Yeah, thanks so much for having me back.

Miller: I thought we could start with some of the specific stories of some of your plaintiffs. So first of all, what can you tell us about the case of somebody known in these records as MJMA?

Cunnings: Yeah, so our client MJMA is an Oregon resident. She was on her way to work in a van with a group of people last fall when the van was stopped by ICE agents indiscriminately to effectuate immigration arrests of basically everyone without cause.

Miller: And then what?

Cunnings: She was detained before they knew who she was and without any individualized assessment of whether she was someone who should be arrested or detained. We were able to file a habeas petition on her behalf, which resulted in her release, but that case has continued to allow us to address ICE’s practice of unlawfully effectuating immigration sweeps in Oregon.

Miller: Another of your plaintiffs, he is named as opposed to just initials, Victor Manuel Cruz Gomez. Can you tell us his story?

Cunnings: Victor is a decades-long resident of Oregon. He’s a grandfather. He’s an owner of a construction business, and he actually has something called deferred action. The government has already determined that he cannot be deported from the country for a certain period of time while he applies for a visa. Nevertheless, he was stopped in a case of what we believe was mistaken identity, detained for three weeks away from his family in horrible conditions until he was ordered released by a judge. And so he has joined our lawsuit as a class representative in an attempt to stop these unlawful arrests in Oregon.

Miller: What did you learn about the federal government’s tactics, in discovery, about how the government has been deciding who to target and how agents go about that?

Cunnings: We had a two-day evidentiary hearing in December at which several ICE agents testified and shared some really concerning information. I think it really confirmed what a lot of us have been seeing on the ground. ICE officers testified about targeting people and locations based on a Google Maps type app that shows people who are likely to have an immigration nexus, and that they actually show up in neighborhoods to do these sweeps without having a particular target in mind. What that leads to is a bunch of collateral arrests, so arresting people based on perceived nationality, perceived place of origin, without an actual justified individual reason to detain them.

Miller: As opposed to saying we know this person is here. They’re undocumented and they’ve done this crime in addition, or we have this very specific information about this very specific person. You’re saying it’s much more general.

Cunnings: Exactly. They’re basically just doing indiscriminate sweeps. We saw this in Oregon, especially in the fall. We’ve seen this nationally, and they’ve testified that that’s basically their practice is to arrest first and justify later.

Miller: What exactly does the judge’s ruling yesterday mean?

Cunnings: We think this is a really important check on ICE’s attempt to expand its power and terrorize communities. What it means is that ICE is held to the law, which requires as a default, a warrant to arrest someone and deprive them of their liberty. ICE can conduct warrantless arrests, but only in particular circumstances, and this injunction ensures that they document the finding that someone is a flight risk, an individualized particularized finding before they decide to arrest someone and deprive them of their liberty.

Miller: Last week, the acting head of U.S. Immigration and Customs Enforcement emphasized that agents should not make an arrest without an administrative warrant issued by a supervisor unless they develop probable cause to believe the person is likely to escape from the scene. Is that guidance that came out just last week, is that any different from what the judge ruled yesterday?

Cunnings: That’s a great question. So the timing of the memo is interesting, right? There’s been a lot of public backlash to ICE’s tactics. If you look at the details of that memo, they functionally eviscerate the standard that they state by the description of the factors, right?

Miller: Can you break that down?

Cunnings: Certainly. So if you look at the memo, it says basically anyone who’s in a car, who’s stopped while in a car, they would determine is a flight risk, or anyone who’s entered the country without permission in the first place is a flight risk. This interpretation is counter to decades of case law and the agency’s own interpretation about what it actually means to be an escape risk. So we think it’s functionally meaningless.

Miller: OK, that does remind me of another big issue here because there have been a lot of questions about the bar for administrative warrants to begin with. If the point here is that the judge yesterday said without an administrative warrant, if you’re going to arrest somebody, you need to prove to me that they’re a flight risk. There’s been a lot of questions about this kind of warrant to begin with. In a recent ruling that went viral within the last couple of weeks, a federal judge in Texas wrote this among many other things. He said this:

“Administrative warrants issued by the executive branch to itself do not pass probable cause muster. This is called the fox guarding the hen house. The Constitution requires an independent judicial officer.”

What does it take for the agency, or members of this agency, to get administrative warrants from their supervisors?

Cunnings: I think what’s important to remember is that the default under our Constitution is that human beings should be free. We are to be at liberty. So what that means, especially in the civil context in which immigration law sits, is that ICE is only permitted to keep someone detained or detain someone if they are a danger to the community or a flight risk. So while this ruling speaks to the context of when an administrative warrant is not required, those administrative warrants should be grounded in that same founding principle in the Constitution and case law. That may not be happening. The agency is checking itself, which is extremely concerning, but remembering that backdrop, that the default, especially in the civil context, should be that people are free.

Miller: The judge in this case has also granted class action status in this suit. Who’s included in that class?

Cunnings: We received provisional class certification for the purpose of a preliminary injunction. That class includes anyone who has been or was arrested in the District of Oregon for alleged immigration violations without a warrant and without the required pre-arrest individualized assessment of probable cause since September 28th, 2025, which is when we saw this big ramp up in enforcement in Oregon.

Miller: Do you have a sense for how big that class is right now?

Cunnings: We know that over 1,000 people were arrested in these sweeps since that time period. We don’t have a way of knowing precisely who and who was not arrested without a warrant, but I’ll say just from our practice, it’s very rare that we see people arrested with an administrative warrant, especially in these sweeps in the field.

Miller: How much redress is there for all of those people? I mean, have some of them already been removed from the country?

Cunnings: Unfortunately, yes, there’s incredible pressure. The detention conditions are terrible, and ICE is pressuring people. They’re offering them money to accept quick departure. They’re saying you’re never going to get a lawyer. You should just give up now. But we have had a lot of success in other cases with habeas. I think this has been in the news, the flood of habeas filings in the federal courts and so people are able to vindicate their rights and obtain release because ICE’s practices are just so blatantly unlawful.

Miller: Can you put this temporary injunction in the context of other rulings and other seemingly similar cases around the country in recent weeks?

Cunnings: Similar lawsuits as to the unlawful warrantless arrests have been successful in the District of Columbia and in Colorado. I believe the government has appealed both of those cases, and they may do the same here. We’re just really seeing federal judges step into their role. We were really pleased yesterday to hear the judge talk about the human impact of these practices, the terror that it wreaks on communities. People are afraid to leave their houses to go about the activities of daily life because there isn’t a way for them to avoid these unlawful practices. So we’re really pleased to see the judiciary exercise this check on the executive’s overreach right now.

Miller: So as we’ve been talking about, this is a preliminary injunction. What are the next legal steps?

Cunnings: The government has been ordered to provide periodic reporting to class counsel on any warrantless arrests that they make in Oregon, describing the factors that they analyzed for flight risk in advance of the arrest, so we’re pleased that we’ll have the ability to go back to court if we don’t see compliance in those periodic reports. We’ll also be reaching out to the community to help educate class members on their rights and communicate case updates, and this was only a preliminary injunction, so we’ll continue to litigate to more permanent relief.

Miller: Jordan, thanks very much.

Cunnings: Thanks for having me.

Miller: Jordan Cunnings is the legal director of the Innovation Law Lab.

We’ve been talking about the Trump administration’s actions and questions about fundamental freedoms guaranteed by the Constitution. A few weeks ago, the FBI raided the home of a Washington Post reporter. According to the newspaper, agents seized her phone and two laptops. This search has brought renewed interest into a law called the Privacy Protection Act of 1980, which aims to protect sensitive places like journalists’ homes.

Steve Kanter gave expert testimony when Congress was debating that bill more than 40 years ago. He’s a constitutional scholar and the former dean of Lewis & Clark Law School. He joins me now to talk about this and other constitutional issues that are at stake right now. It’s good to have you on the show.

Steve Kanter: Great to be here, Dave. We live in challenging times.

Miller: Before we get to the search of the Washington Post reporter’s home, the big reason we wanted to have you on, I’m just curious what stands out to you in what we were just talking about with Jordan Cunnings.

Kanter: Jordan and the folks that she worked with represent the very best of the legal profession. They are standing for the rule of law, making sure that the rights of our Constitution are honored and protected. And that’s what it takes. We have thousands of lawyers around the country doing that, and, more importantly, increasingly tens and tens of thousands of ordinary people who believe in the fundamental principles of our republic, and that’s what is the most important thing in a constitutional republic.

Miller: I mentioned that you gave expert testimony back when Congress was considering the Privacy Protection Act of 1980. What was the context for that debate 46 years ago?

Kanter: Exactly, hard to believe. First of all, this is not a new issue. One of our revolutionary founders most concerned about was that the British would engage in general searches and so-called writs of assistance, rummaging through people’s papers, and whoever’s in power is tempted to do things like that. So the backdrop of my testimony for the Privacy Protection Act was that there were a spate of searches of lawyers’ offices in the late ‘70s and early ‘80s and also of especially college newspaper offices, including The Stanford Daily. And I had a case in Portland involving the search of a lawyer’s office.

The U.S. Senate heard about it, and I was called to testify before Senator Ted Kennedy’s committee. We did succeed in getting Congress to recognize that there were serious problems. They ultimately passed the Privacy Protection Act of 1980, which attempted to put safeguards on intrusions into sensitive areas like reporters’ homes, journalism offices, lawyers’ offices, doctors’ offices, priest offices, and things like that.

Miller: Can you give us the short version of that Oregon connection, that, that Oregon story?

Kanter: Certainly. Ironically, the Portland police asked a corporate lawyer if they would volunteer and represent something called the Transit Bank. The Transit Bank was a very interesting thing, for the folks that were inebriated and would get assistance checks, they would often lose them by getting rolled or they’d spend them on alcohol very quickly. The Transit Bank would take those checks and give the money out slowly over the month to the individual. So it was a very good social service. This lawyer took on the case as a volunteer. Eventually, the police suspected the Transit Bank was perhaps siphoning some of the money, and they wanted the materials that the lawyer had in his office.

They asked the lawyer to give them, and he properly said, “Well, they’re attorney-client. I can’t. You’d have to get a proper court order,” meaning a subpoena. Instead, one day they showed up with a search warrant at his office. He tried to talk them down, but they ended up searching his office, basically tearing it apart, searching the offices of 30 other lawyers, basically, 15 other lawyers who were sharing space with him, and they seized a great number of materials. Then he called us and we represented him on behalf of the ACLU and eventually got the materials back.

Miller: What does the resulting law that partly stemming from that case and others that the Congress did pass, what does it actually guarantee?

Kanter: The critical component is it says if you are going to search, especially a sensitive place, for materials that might be evidence in a crime, unless you have good reason, probable cause to believe that that person is themselves a criminal who might destroy evidence, you have to get a subpoena instead of a search warrant.

Miller: What’s the difference there? For us non-lawyers, they both seem like pieces of paper that some person in authority has to sign off on in order to make a search possible. They almost seem like synonyms, but clearly, you’re saying they’re not. What’s the difference?

Kanter: Exactly. The critical difference when you get a subpoena, you have the right to challenge it in court to find out if the materials are privileged and to make sure that only those materials which are discoverable are turned over. When a search is conducted, especially of a journalism office or a reporter’s home, they rummage around and they might see all sorts of confidential materials as they did in the lawyer’s office that had nothing to do with the case and that violated our most fundamental principles. So there’s a huge difference.

Miller: Based on what’s known publicly, and that’s a big caveat in my understanding, does it seem that the Trump administration followed the law in this Washington Post report of Hannah Natanson’s case?

Kanter: Well, of course we’ll see when the facts come out if it’s really tried in court, and I don’t want to speculate about that, but I will say, the law is very carefully crafted. It does have exceptions, but the exceptions are things like they have to have real cause to believe the person was going to destroy evidence or that there’s an imminent threat to life and property, or that the person themselves is suspected of holding national security materials against the law.

I think that the Privacy Protection Act is a very good bulwark against improper searches. The other thing to be said, the Privacy Protection Act is important, but that’s not the first thing. We have similar constitutional rights. That’s what the Fourth Amendment is about. The First Amendment, which protects freedom of speech and free press, the Sixth Amendment with respect to attorney-client privilege, and the Fifth Amendment, due process. So it’s not just the statute. We have fundamental bedrock constitutional principles that need to be upheld.

Miller: And it’s not just this particular search. Could you put this search in the larger context of other issues just in terms of journalism? Think about the recent arrests, for example, of journalists like Don Lemon and Georgia Fort.

Kanter: Absolutely. And take it even broader internationally, an extraordinary number of journalists have lost their lives in the last few years. But as you say, there’s an increasing tendency to search journalism offices and homes. There have been some arrests. Journalism is under attack. I mean, it’s a different, smaller issue, but of course NPR has lost its federal funding. That might be a good thing ultimately to protect independence, but there’s lots of pressure.

Even Jeff Bezos’ cuts at the Washington Post, they’re probably largely driven by the losses. But one also wonders about the pressure that is brought to bear on people and corporations that own media. So there are a lot of both direct and

indirect attacks. Our media is one of the bedrocks of having a constitutional republic. As it is weakened or attacked, so is our constitutional republic.

Miller: It’s become very hard to track all of the constitutional issues that are at play or in jeopardy right now. Just in the last month or so, a partial list includes the seizure of ballot boxes from Fulton County in Georgia. The president saying that they should nationalize elections, the killing of two people in Minnesota. How do you decide where to focus your constitutional lens?

Kanter: Well, of course, we are living in very challenging times, and I think the critical component is to look at those places where we can reassert and firm up the fundamental bedrocks of a civil constitutional democracy. There are many people doing lots of things nationally and locally, and it’s critically important that the people are the ultimate bedrock and the ultimate bulwark against excesses. This is a completely nonpartisan issue. We are Republicans, Independents, and Democrats, but we should all be committed to the fundamental principles.

We’re coming up on the 250th birthday of our Declaration of Independence. It’s time, as it happens all the time, for a renewal of the principles of our Declaration and our Constitution. Ultimately that comes to the people. I’m a realist, but I actually am optimistic about the future. I think there are increasing signs that the people are ready and that they’re going to stand with courage, dignity, and nonviolence for the principles that are so important to our democracy.

Miller: What effective constitutional safeguards do you see right now that underpin your hope?

Kanter: As Jordan said, first of all, many federal judges have shown that they are willing to insist upon adherence to the principles. Frankly, this is not the first government that sometimes ignores the principles or tries to get around them. We will have continuing tests, but I am heartened by the reaction of federal and state judges. I’m also heartened by the fact that it doesn’t matter in many cases whether the judge was appointed by a Democrat or a Republican.

Miller: Or by President Trump himself.

Kanter: Exactly. In Oregon, of course, we have the significant case when President Trump attempted to insert national guard troops here. The judge that wrote the excellent opinion, showing how that violated the Constitution and the law, was appointed by him in the first term.

Miller: That’s Karin Immergut. Former prosecutor.

Kanter: Karin is an excellent lawyer, a fair judge, and fortunately we still have many such judges, but the courts will not be able to preserve our democracy.

Long time ago, Justice Robert Jackson, one of our great justices, said, and he was on the Supreme Court, “We can issue a few opinions to make sure that one branch does not get out of control, but ultimately” – in that case, he was limiting the president, President Truman, who had seized the steel mills during the Korean conflict – “but ultimately, only Congress can protect its own prerogative. Only the states can protect their own prerogative in our federalist system. Only the people can preserve our democracy,” and that stands today just as it did 70 years ago.

Miller: I’m curious about the lawyer piece of this given that you yourself are a lawyer. Early on in Trump’s second term, he threatened some of the most prominent and powerful and wealthy law firms in the country, the ones who had been hired to work on cases against him in the past, which is pretty standard. That’s what law firms do. They take basically any case if they’ll get paid for it. But he said he didn’t like that, and many of them almost immediately capitulated. They changed the work that they were doing and/or they basically just paid up tens or hundreds of millions of dollars. What effect did that have?

Kanter: A terribly deleterious effect. I frankly was very disappointed in those institutions. The explanation from one of the managing partners was, well, if we had a big client who was threatened with an existential attack, even if they were right and the attack was impermissible, we would urge them to settle, and we’re in the same position.

Miller: Because it’s just a business, was that argument.

Kanter: Exactly. No, they were not. They are a business, but they’re also a professional organization that swears an oath to ethical principles and to the Constitution. And they get many privileges in exchange for that.

I really cannot justify the capitulation of those firms. On the positive side, however, there are a number of significant firms that chose not to capitulate, including Perkins Coie in our neighborhood in the Northwest, Williams & Connolly, a very prominent firm in Washington D.C., John Keker’s firm in San Francisco. I think at the end of the day, the firms that stood on principle are actually going to also benefit. That’s not why they did it. They did it for principle, but I think they will benefit.

Clients are going to come to see, we want lawyers that are willing to fight and stand on principle. And you know, the CEO of Nvidia said, “Why would I hire one of the firms that capitulated? I want a lawyer that’s willing to stand up to the government if necessary.” If we get more corporations and people and law firms and young law students who want to choose where they work on the right side of this issue, I think in the end of the day principle will win out.

Miller: You recently wrote a statement of principles that you call lawyers standing for the rule of law. What are the basics of that statement and what are your plans for it?

Kanter: First of all, it’s completely nonpartisan. It starts by saying, this includes everybody, Republicans, Independents, and Democrats. We disagree about all kinds of substantive policy issues from all administrations, including this one. There’s some people we’ll support, some we don’t. But we stand together on the bedrock principles from our Constitution and our Declaration of Independence, and the set of principles lays those out in very simple terms. They really should be noncontroversial. There’s a number of things we hope to do. Of course, we want all lawyers to commit to that for sure.

Beyond that, I would like to see all law students and law schools make sure that they’re reemphasizing the ethical responsibilities of the legal profession. And then beyond that, when we think of ourselves as voters, yes, we have partisan issues that we care about, of course. But we also should all be committed to this set of principles, and we should insist that our candidates, whether they are Republicans, Democrats, Independents, or some other party, we should insist that they stand for these principles if we’re going to offer them our support. Ultimately it is the voters that will need to make sure that we preserve our democracy. That’s always been the case. It’s always been an experiment, a fragile one, but I remain optimistic.

Miller: Steve Kanter, thanks very much.

Kanter: Thank you, Dave.

Miller: Steve Kanter is Dean and professor emeritus at the Lewis & Clark Law School.

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