When police arrest people for suspected crimes, the U.S. Constitution requires them to show probable cause to a judge within 48 hours. But Immigration and Customs Enforcement (ICE) does not do that. When ICE arrests people, it typically holds them for weeks before any judge evaluates whether ICE had a valid legal basis to make the arrest.
That may need to change.
A federal appellate court in California recently did something that is at once simple and radical. The 9th Circuit Court of Appeals said the usual constitutional rules that apply to normal police all over the country also apply to ICE. “The Fourth Amendment requires a prompt probable cause determination by a neutral and detached magistrate,” the court said. This really shouldn’t be a big deal. Prompt independent review by a judge of whether the government has a legal basis to take away a person’s freedom is an essential safeguard against tyranny. It’s something we all should be able to take for granted.
Yet it is a big deal. Since the 19th century, immigration enforcement has existed in a constitutional shadow land where the usual rules do not apply. When ICE arrests people, the only immediate review is from the ICE officers themselves. It may take the immigration court weeks to hold a hearing, and typically at the first hearing the judge may deal only with procedural matters.
Eventually, at a hearing a few weeks later, the immigration judge will ask the person how they plead to ICE’s allegations against them. Only then, long after the initial arrest, might ICE actually be required to show a judge any evidence to back up its case. The person would have spent all of that time detained, likely at a private detention center in a remote area.
This is a gaping hole in our constitutional armor. It effectively offers the federal government a shadow legal system that can be used at its discretion. As more and more Americans grow worried about creeping authoritarian impulses in our government, we ought to be very worried about a mechanism that allows the federal government to arrest and detain thousands of people, out of sight, with no court doing even a cursory check.
The federal court’s demand for the usual constitutional safeguards to apply to ICE should not be difficult for the government to meet, in theory. It just asks ICE and the immigration courts to do what local police and courts do every day, all over the country. Yet it may prove to be a significant challenge. America’s immigration courts were nearly at the breaking point even before the COVID-19 crisis, with a backlog of more than a million cases that has only grown worse since the pandemic forced the courts to partially close down. It is now common for routine deportation cases to languish in court for years before getting an initial decision, much less appeals.
The immigration court system is hardly prepared for judges to now bear the responsibility of reviewing arrests within 48 hours. In immigration, merely imposing basic constitutional rules can seem radical. But it shouldn’t be that way. Nevertheless, in the short run, a startling question looms over federal immigration enforcement: Are most immigration arrests unconstitutional? The answer may very well be yes.
ICE recently announced that it has resumed doing large-scale enforcement operations, announcing roughly 2,000 arrests over several weeks in late summer. The 9th Circuit’s decision raises an obvious question: How many of those people were detained for more than 48 hours without a review by a judge? Were many of those arrests — which ICE likely thought were routine at the time — actually unconstitutional?
The government may appeal the 9th Circuit’s decision to the Supreme Court, and that may be for the best. The ruling, while sweeping in its potential to reshape immigration enforcement, is legally simple and straightforward. It ought to become the law of the land, and it ought to spur the government to reform the immigration court system at long last. To paraphrase former President Obama’s description of undocumented immigrants, it is time to bring immigration enforcement out of the constitutional shadows.
Michael Kagan is the Joyce Mack Professor of Law at the University of Nevada, Las Vegas. He was a party to a friend-of-the-court brief filed in the 9th Circuit case mentioned above. He is the author of “The Battle to Stay in America.” Follow him on Twitter @MichaelGKagan.