Did you ever wonder how it came to be that people suspected of immigration violations are subject to arrest without a judicially issued warrant? That executive branch immigration enforcement officers themselves have the authority to issue enforceable arrest warrants? And further, how it came to be that alleged immigration law violators can be held in prolonged detention without a probable cause hearing before a neutral magistrate of any kind?
When I first encountered this set of related issues, I quickly learned the conventional wisdom, that based on a longstanding tradition and Supreme Court approval, immigration law is an exception to the Fourth Amendment’s requirements that only judicial officers can issue arrest warrants and that in cases of warrantless arrest, the arrestee must be brought before a neutral judicial officer within a reasonable amount of time, normally not to exceed 48 hours. Professor Lindsay Nash’s excellent recent article Inventing Deportation Arrests reveals, through meticulous historical and doctrinal analysis, that the conventional understanding is built on shaky legal and historical ground and is subject to serious abuse. The article is very well written and enlightening on an important subject that I suspect has been somewhat opaque to most scholars of administrative law.
In a nutshell, as Professor Nash explains, acceptance of today’s practice is based on Supreme Court approval of a system that no longer exists. The key aspects of the system established by Congress in the late nineteenth century and approved by the Supreme Court in 1903 involved issuance of warrants only by high-level officials including the Secretary of the Treasury and review of warrantless arrests by an uninvolved official, often also of a relatively high rank. These features have long since vanished, but the propriety of detention without judicial approval has metastasized into what Professor Nash characterizes as a regime, without significant accountability, that allows low level enforcement officials to determine “whether to subject over a hundred thousand people annually to the extended detention and the bare process of our modern deportation system.” (P. 1303.)
The premise from which Professor Nash begins is that “in most other contexts, arresting officers remain constrained by a neutral-and-detached-review rule.” (P. 1303.) This usual practice is based on the view that “because enforcement officers ‘lack sufficient objectivity’ to determine whether there is adequate cause to justify deprivations of individual liberty, neutral and detached adjudicators must intercede.” (P. 1303.) In the immigration context, by contrast, “low-level enforcement officers alone” determine whether a warrant should issue or a warrantless arrest was justified. “No magistrate—not even a neutral administrative officer—deliberates over the permissibility of the arrest beforehand…[or] evaluates probable cause after the fact.” (P. 1304.)
The result? As Professor Nash succinctly explains, “[f]reeing arresting officers from any obligation to justify the arrest to a detached arbiter has, unsurprisingly, played an important role in allowing race-based policing to persist. This arrest scheme has also allowed ill-investigated, contrary-to-statute, and retaliatory arrests, and led to countless erroneous arrests of U.S. citizens. This—and the fact that so many people are not entitled to release post-arrest —has resulted in an incalculable number of days of unlawful and unnecessary detention.” (Pp. 1304-05.) (I have omitted the extensive footnotes Professor Nash includes to support each of these conclusions.)
The most chilling aspect of the article is its description of the modern deportation arrest regime. Under current law, Congress, in the Immigration and Nationality Act, has empowered the Secretary of the Department Homeland Security to issue immigration arrest warrants. The Secretary then subdelegated this authority “to over fifty types of immigration enforcement officers, including those who investigate cases or even make arrests themselves.” (P. 1311.) Perhaps even worse, enforcement officers are also authorized to make warrantless arrests whenever they have “reason to believe” that a suspected noncitizen in their presence “is entering or attempting to enter the United States unlawfully or is likely to escape before a warrant can be obtained.” (Pp. 1311-12.) While such warrantless arrests are supposed to be reviewed by a second officer, that officer need not be neutral or detached, and this step can be skipped if there is no readily available second officer.
In what may be the article’s greatest contribution, Professor Nash demonstrates that the Supreme Court’s long-ago approval of a significantly different system of administrative immigration detention provides little or no doctrinal support for current practice and that despite this, courts have consistently turned away challenges to deportation arrests in reliance on that outdated approval. She characterizes those courts as having made “reckless jurisprudential leaps…by treating a wide range of distinct types of executive probable cause determinations as equivalents regardless of the role or position of the officer signing off on the arrest.” (P. 1315.) Professor Nash describes how judicial acceptance of subdelegation has been a major contributor to the misguided approval of the modern system of deportation arrests.
This article makes what I view as a major contribution to the study of immigration detention practices and administrative law more generally. Although Professor Nash does not propose specific reforms to the deportation arrest system, she provides ample support for her conclusion that “a closer look at this history contradicts the notion that our modern scheme was historically sanctioned, offers important insight as courts confront new challenges to the constitutional validity of these arrests, and provides robust historical support for calls to fundamentally transform the deportation arrest system.” (P. 1363.) It might also inspire scholars to take a fresh look at additional adjudicatory systems that seem unfair in similar or related ways.
