This is a lightly edited transcript of the January 26 edition of Right Now With Perry Bacon. You can watch the video here or by following this show on YouTube or Substack.

Perry Bacon: I’m Perry Bacon. I’m the host of The New Republic’s Right Now. I’m joined by Jessica Pishko. She’s the author of a book called The Highest Law in the Land: How the Unchecked Power of Sheriffs Threatens Democracy.

That came out a couple of years ago, and she’s written a lot about law enforcement issues in the U.S., particularly how federal and local law enforcement work together.

So I wanted to bring her on to talk about ICE and what we’re seeing in Minneapolis. There’s a lot of discussion about how ICE interacts with the National Guard, Customs and Border, and how there’s a lot of tension right now between the local police in Minneapolis and ICE, based on the events of the last few weeks. I wanted to ask her about those kinds of things. Jessica, welcome.

Jessica Pishko: Hey, thanks for having me.

Bacon: Let me start with ... we’ve heard a lot about how ICE is not that new of an agency. I think it was created in 2002. Talk about the history of—we’ve had immigration ... enforcement in the country before. Talk about the idea of where ICE came from, if you can.

Pishko: Yes, of course. As most people have pointed out, the Department of Homeland Security was formed in 2003 in response to 9/11. Which is why it has “Homeland” and “Security” right in the name.

And what they did was—the prior system had Border Patrol. So Border Patrol was always Border Patrol. We had a division called INS, and INS basically was more of an administrative office. They handled people checking in, processing people’s claims. Because immigration—one of the things that is maybe not obvious to people is that people think: Oh, immigration is you wait in line and then you get a piece of paper and then you’ve got a green card, and then you go and get citizenship.

But instead, immigration is actually a big patchwork. Because you have people who seek asylum, you have people with protected status. You have a variety of people.

And so when they created ICE out of DHS, what they did was bring together two kind of different law enforcement agencies. So the two parts of ICE, one is called HSI—Homeland Security Investigations, which used to work under the Department of Justice. And they are like detectives, is what they would say.

So if you talk to an HSI agent, they would say they’re more like the FBI. And actually, periodically, through the years, they argue that they should be part of the FBI, not part of ICE. Their mission is really about—they do quite a lot of work [in] trafficking: drug trafficking, human trafficking.

Also, one of the things they do that you might see if you live in a city like New York is counterfeit. If someone’s raiding a store on Canal Street, that’s usually HSI; they’re raiding for counterfeit handbags or whatever. They consider themselves trade-like agents, and that’s how they go about their business.

Now the other part of ICE is the ERO. ERO is the division that basically removes people. Their job is essentially enforcement and removal, which means their job is to go out and basically arrest people who are subject to removal. That’s their whole job.

And so the two divisions are different—I mean, all law enforcement, they argue. One of the things that is perennially true about law enforcement, just like every other profession, is different groups argue amongst themselves about who’s the real cops and who’s this and who’s that, who should be doing this?

So there is tension between the two sides. HSI does not always like working with ERO. And right now it’s all very confusing, because the mandate is just: Arrest a lot of people. Everybody needs to be arrested. And so—

Bacon: Let me slow down and stop you. I want to come back to that. So talk about ICE from, let’s say, 2003 to 2016—which, I’m guessing, a lot of us did not think a lot about ICE. What is ICE before Trump?

Pishko: Yes. So before Trump—one of the ways ICE works is they have regional offices. Our example here in North Carolina—we have a North Carolina regional office, and most ICE operations will happen out of that regional office. So the ERO operations are conducted locally.

And the reason why they’re conducted locally is because the main job of ERO is really to pick up people who have been arrested or who are detained in prison or county jails. That’s always been their primary job. And if you look at prior administrations—actually, if you look at Biden’s administration—this was primarily what ICE does.

They get calls from local law enforcement who have people that they’ve arrested who they believe are deportable. And then they’ll call ICE and say: Hey, we have these people. We think they’re deportable. Can you come pick them up? That’s the typical way it goes.

You will see—people will be in prison. After they’re released from prison—and this is in every state. You know, California; it’s not like a red state–blue state thing—they will call ICE and say: We have such-and-so being released from prison. We think they’re deportable. Will you come pick them up? That’s the biggest thing they do.

Now, the two other things they do, is sometimes they will have people with warrants that are deportable. Supposedly, they’ll get a warrant and say: This particular person, we think, is deportable. We want you to go get them because we think that they have committed a serious crime. And so sometimes—it’s called a targeted arrest.

Then this third thing they do on occasion is what they call collateral arrests. Collateral arrests are basically, you go to arrest an individual, and this person has two friends there, or two family members there, who ICE believes are subject to deportation. And so they will just arrest them at the same time.

And to say also—when ICE arrests you, they don’t make the decision about whether you’re deported. An individual still has rights even after ICE arrests you.

It’s similar to being arrested for—let’s say they think you committed a robbery and they arrest you. They say: We think you’re deportable. They will arrest you. They put you in detention. That’s the fourth thing ICE does, is detention. They buy and rent detention facilities for people.

But that person—you still have a right to see a judge. You have a right to ask for bail. You have a right to argue your case. You could say: I’m not deportable for x, y, z reasons. They’re basically a catch-and-release agency. They catch people, they put them in detention, and then judges decide, OK, this is what happens.

Bacon: Did what ICE did change much in Trump One? I don’t recall—the “abolish ICE” thing started in Trump One, but I don’t remember them being deployed to cities like this. So what happened in Trump One involving ICE?

Pishko: The biggest thing that Trump did in Trump One was change the priorities. One of the things about ICE—in all law enforcement—is that the bulk of how they operate is not law, but it’s priorities; it’s policy.

What Trump did when he came into office was he changed the policy. The first policy he changed was the policy of collateral arrests. Under Obama—Obama tried to limit the collateral arrests of people who did not have criminal convictions in the U.S.

I want to clarify, too, that everyone that ICE decides may be arrestable, deportable—it’s what they did after they got here. So it is a weird system. You’re already here, and then you maybe are accused of a crime, and then they decide they might deport you. It’s a weird system.

So he got rid of all these priorities. They also had rules about: you weren’t supposed to be in courthouses. You’re not supposed to be at houses of worship. You’re not supposed to be at hospitals. Because, under Obama, his catchphrase was “felons, not families.” Which you can debate—I have a lot to say about that—but ultimately his goal was not to arrest ... let’s say someone had a family. You have an individual that’s arrested—they have a wife, some kids. Maybe some of the kids are citizens. Maybe the wife is not. The Obama-era policy was not to arrest the wife and kids as collateral arrests, but just to arrest the individual that they thought had committed a crime.

That was the biggest change under Trump One. And I will say, Tom Homan was there under Trump One. Now he has a really rigid idea about who should be deported. Tom Homan never got confirmed as head of ICE. They tried to make him head of ICE, but he was considered too scandalous. And then one of the reasons he never became head of ICE ...

But his positions are really extreme because we have exceptions. For example, one exception is someone receiving medical care in the U.S. So let’s say you have cancer and you or your child is receiving cancer treatment. The U.S. has a policy of not deporting families who have children getting medical treatment. But Tom Homan ... he would argue: No, we shouldn’t make that exception.

Now we see what we see, which is obviously they don’t make that exception anymore, but that has been the traditional policies.

Bacon: And so that was Trump One, was to change the enforcement policies, basically.

Pishko: Yeah, but they still didn’t change that much about street arrests. They still were mostly picking up people who were in jails. That was the bulk of their job. And to say also, the biggest complaint always from local law enforcement is that ICE doesn’t pick up all the people that they get called about.

Let’s say you field calls. So let’s say in a day they get 20 calls and they’re like: Hey, here’s all these people you could pick up. ICE will decide: this person, this person,........

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