A federal court may have declared immigration arrests unconstitutional

Overitall said:

I see your point but up until immigrants take the oath of the United States citizenship they remain solely citizens of the country from which they came. They are not part of we the people. IMHO.

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The defense and protection of the state and of the United States is an obligation of all persons within the state. The legislature shall provide for the discharge of this obligation and for the maintenance and regulation of an organized militia.

Right wing promotion of the general warfare over the general welfare could make our naturalization clause even more simple.

Checkerboard Strangler said:

Illegal entry should be treated as a violation of the law but let the punishment fit the crime.
Most countries treat it as "unauthorized". It is a civil violation, and the punishment may involve immediate deportation if the person is convicted of one or more crimes, certainly above that of a minor misdemeanor.
It may also only involve fines and more paperwork instead, and reporting requirements with deadlines for finishing and/or correcting the process, with steps involved in determining if the entrant has the potential to be here with authorization, and demands to fulfill those requirements if so.

Employers are not held responsible enough for screening, and the tools for them to use if they try are paltry and clumsy.
All of this is for a very obvious reason:
This administration, like many before it, LOVES illegal immigration. But they love it on an altogether bigger level.

If all illegal immigration or entry were to magically drop to ZERO tomorrow, it would result in waves of catastrophic bankruptcies followed by a bigger wave of lawsuits by the industry that this administration PROPS UP in true fascist style.
This administration has catapulted the profit-based private detentions and corrections industries to levels several orders of magnitude above anything in our history. This industry is to Trump what The Carlyle Group was to Bush43.

The Trump Camp is not out to fix illegal immigration, they're making more money than God off it, at taxpayer expense.
We are underwriting concentration camps.
The issue is whether or not a person is here with authorization from federal and state governments.
The shortest, cheapest, most efficient route is to correct the situation when possible.
There must be a bar of merit applied if for no other reason than almost every other country does it.
But moreover, we do have the right to demand a certain amount of net socio-economic positives.
These should be reasonable, and so should administrative fees and penalties.
If they are refugees, they must be processed by a uniform method, and we also have the right to set limits on numbers of refugees admitted for processing.

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Right wingers only know how to lose money not make money with a Commerce Clause and a central bank. There is no Immigration clause in our federal Constitution and supreme law of the land. Right wingers simply refuse to Obey and be Legal to our own laws, and then complain about all the problems it causes.

NWRatCon said:

A federal court may have declared immigration arrests unconstitutional (The Hill, Opinion).

A fundamental aspect of "due process" is the opportunity to be heard. The Ninth Circuit has raised that issue with regard to immigration arrests, and I think it is a valid one that deserves to be a addressed. Immigration detainees are incarcerated for indefinite periods - months, years - with no meaningful opportunity to challenge the legitimacy of their detention. That, I think, is a fundamental problem.

IMHO, while there may be legitimate reasons to distinguish immigration cases from criminal cases, the fundamental Fourth Amendment considerations regarding "seizure" still apply. The Fourth Amendment is intended to safeguard against unchecked government power. We, as a society, have deemed it a fundamental right within our borders. It's not a matter of citizenship, it is a matter of presence: if we want to contend we have the legal authority to assert jurisdiction, we must comport our behavior to our fundamental principles.

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I'd expect nothing less from an illegal immigration advocate like Kagan who can't bring himself to acknowledge that's it's called "illegal immigration" for a good reason.

NWRatCon said:

I've wondered for a long time why a court hasn't weighed in on the absolute abuses being perpetuated by the immigration enforcement system. Perhaps it took the Trump administration bringing them out in the open and extending them so far. I'm not sure who you mean by "local authority". The federal government has exclusive authority over immigration and naturalization.

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Can't a local authority, city, county or state, formally refer the immigrant to a fed court for due process?

danielpalos said:

There is no actual and express, Immigration clause in our federal Constitution. Don't believe in Individual Liberty or Natural Rights?

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There are a lot of immigration laws.

danielpalos said:

What undesirable options are you referring to?

~snipped the irrelevant, illogical nonsense~

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Read my other posts. I listed the two undesirable options.

Overitall said:

The word “citizen” doesn’t exist in the preamble either.

The “natural born citizen” does not apply to Congress. There the requirements is seven years as a citizen.

In any case you’re just proving my point. Not any “person” can enjoy the benefits of the Constitution. Only a “person” who has attained citizenship by birth or becomes a citizen. The Constitution was written for and by “We the people of the United States. All those “persons” who visit here are just that visitors. There are requirements for their continued stay in our country. They can be deported. Try deporting a citizen (or person of the United States).

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This is demonstrably false. The constitution applies s to anyone in US soil. Citizenship is irrelevant.

bluesmoke said:

Can't a local authority, city, county or state, formally refer the immigrant to a fed court for due process?

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Not independently. That would raise an issue of standing, I think, although I've not researched the question. Immigration is a federal responsibility, delegated by law. I think that the State's choice is to either turn someone over or not. Indeed, i think the "detention" process itself is constitutionally problematic - what legal authority does the State have to hold someone outside of the State's jurisdiction?

NWRatCon said:

I'm still working my way through the new discussion board system. It appears that one can only show ALL ignored content if one clicks "show ignored content", and that is too much for my delicate stomach. There's a reason I use the function.... (But, I have gotten the gist of the idiocy, and the lack of substance to so many responses.)

Here's the fundamental point: rights are guaranteed under the Constitution for a reason. People who aren't subject to the constraints of the government don't need those guarantees. It's really that simple. It's only when the government seeks to use its authority that those "rights" become relevant.

I don't give a flying fig how or why someone is in the United States, and that is immaterial to the issue. What IS material is what this nation stands for, and that is, relevant here: equal justice under law, as provided by our Constitution. ANYONE subject to the laws of the United States (and that includes all persons present within its borders) are entitled to the basic rights enshrined in that document. That's a central tenet of our society.

Under our laws a person here without authorization is not a criminal. We haven't made it a crime. Even ENTERING without authorization is only a misdemeanor. 8 U.S.C. § 1325. Incarcerating someone indefinitely (especially children) is not something that is consonant with our values. The only way to check that abuse is through the court system, which necessitates having access to some reasonable form of due process. Imagine being a US citizen detained erroneously for MONTHS or even YEARS with no opportunity to challenge that detention. Is that an American value? I don't think so. It is no different for anyone else, and that is what our Constitution guarantees.

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So you choose to ignore the fact that we have immigration laws. Well lets also ignore laws regarding Roe V Wade and start arresting abortion doctors. But you are ignoring the law. So here is the breakdown. Being illegally in the country is indeed illegal.

rahl said:

This is demonstrably false. The constitution applies s to anyone in US soil. Citizenship is irrelevant.

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Due process doesn't mean something is not illegal. Due process is offered to people who commit crimes in America. We have laws regarding the many varied circumstances regarding illegal entry.

Integrityrespec said:

Due process doesn't mean something is not illegal. Due process is offered to people who commit crimes in America. We have laws regarding the many varied circumstances regarding illegal entry.

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I understand that. I was simply pointing out the constitution is not just for citizens. It applies to everyone on US soil, regardless of legal immigration status.

Mycroft said:

The problem is this: There is a backlog of immigration hearing cases that stretch into years in the future.

So...should a person, say...an illegal alien, be allowed to roam around the country for years before their case comes up for a hearing? I don't think so. Should that person be incarcerated for years before their case comes up for a hearing? I don't think so. (An exception would be in the case of violent criminals. They can rot in jail, for all I care.)

My solution is simple: Give them a court date...even if it is five years in the future...and ship them back to their own country. If they want to appear in court, they can. If not, they can stay where they are.

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Wouldn't a simpler solution be to fill the vacancies on the immigration courts? It's seems logical to me. Trump is not logical nor are his sycophants in the DHS.

Trump's main mission is to deport as many as possible regardless of due process. Plain and simple he hates black and brown people. He told us that many years ago.

Joe Biden's got lots of work to do.

Mycroft said:

The problem is this: There is a backlog of immigration hearing cases that stretch into years in the future.

So...should a person, say...an illegal alien, be allowed to roam around the country for years before their case comes up for a hearing? I don't think so. Should that person be incarcerated for years before their case comes up for a hearing? I don't think so. (An exception would be in the case of violent criminals. They can rot in jail, for all I care.)

My solution is simple: Give them a court date...even if it is five years in the future...and ship them back to their own country. If they want to appear in court, they can. If not, they can stay where they are.

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that is the solution to the whole problem. right there. here is your court date show back up here on this date and we will here your case.
until then you are remanded back to your country of origin.

If you are caught attempting to illegally cross the border you will summarily deported and your case will be thrown out.

rahl said:

I understand that. I was simply pointing out the constitution is not just for citizens. It applies to everyone on US soil, regardless of legal immigration status.

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they are technically not on US soil. you are only on US soil after you make it through a customs check point.

NWRatCon said:

Not independently. That would raise an issue of standing, I think, although I've not researched the question. Immigration is a federal responsibility, delegated by law. I think that the State's choice is to either turn someone over or not. Indeed, i think the "detention" process itself is constitutionally problematic - what legal authority does the State have to hold someone outside of the State's jurisdiction?

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I got the following response from an online immigration lawyer:

"Theoretically it is possible. But it depends upon the state, and how aggressive they are willing to defend its status as "a refuge" as and against the Supremacy Clause if Federal agents were to challenge."

"If I were to take a guess off the top of my head California, New York, New Jersey and Massachusetts would probably be the most aggressive in challenging."

It's an unanswered situation.

bluesmoke said:

I got the following response from an online immigration lawyer:

"Theoretically it is possible. But it depends upon the state, and how aggressive they are willing to defend its status as "a refuge" as and against the Supremacy Clause if Federal agents were to challenge."

"If I were to take a guess off the top of my head California, New York, New Jersey and Massachusetts would probably be the most aggressive in challenging."

It's an unanswered situation.

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It may be unanswered, but that is a confusing effort to do so. It is well-settled law that the federal government may not coerce State entities to to enforce federal law, as the Supremacy reference implies. I don't think that addresses your question.

Your question, as I interpreted it, was if a State could refer the matter to a federal Article III court. My concern would be establishing whether the State would have standing to raise the issue. Here's why:

If the State entity receives a detainer request, it can either comply or decline to enforce it. It cannot be required to comply. In the absence of a requirement, there is no case or controversy for the Court to adjudicate. The State retains free will. If the federal government seeks to coerce the State into compliance, then there would be a conflict that could be adjudicated. I don't think the State can go to court to prospectively ask the question, though.

I do think that the State has an interest in the fair treatment of denizens under their control, but their option is to simply release the individual when no longer subject to State proceedings. So, the question is still unanswered, but I think that's a better analysis. It is a good thought, though.

Overitall said:

And yet even after I quoted a snippet from Taney’s Majority opinion and highlighted the pertinent points to our discussion you chose to ignore them by claiming the case was about a slave. That’s obvious. But what is overlooked is how Taney defined to whom the Constitution pertained and was beneficial to. The citizens of the United States.

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But what is overlooked is how Taney defined to whom the Constitution pertained and was beneficial to. The citizens of the United States.

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That is not an accurate reading of Dred Scott.

If you want to debate case law, then fine. However, reading a case is formalistic. As a matter of law, Dredd doesn’t support your view the word “person” in the 5th Amendment is applicable only to citizens.

First, the factual issues before the Court can narrow its Holding. From Dredd: “Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen? One of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution.”

That is a narrow factual issue that doesn’t touch upon the meaning of “person” in the 5th Amendment in the broad manner you contend. The focus is narrowed to A.) a negro B.) whose ancestors were imported, BECOME C.) be a member of the political community to enjoy the rights and privileges.

That leaves untouched the vast see of people who ARE NOT negroes, which is to say Dredd doesn’t comment upon that class of people who aren’t negreos, are not citizens, and whether they can claim protections under any part of the Constitution.

Taney explicitly tells the reader his focus is narrow, when he said,”It will be observed, that the plea applies to that class of persons only whose ancestors were negroes of the African race, and imported into this country, and sold and held as slaves. The only matter in issue before the court, therefore, is, whether the descendants of such slaves, when they shall be emancipated, or who are born of parents who had become free before their birth, are citizens of a State, in the sense in which the word citizen is used in the Constitution of the United States.”

Do you understand now? Tandy IS NOT asserting the Constitution and its rights, privileges, and protections are only for citizens. He specifically tells the reader the opinion is much more narrow. Come on man!

I see no point in continuing since the conclusion will be the same. You may have the last word

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The conclusion of you misreading a case, like Dredd Scott, and my having to correct you? That is avoidable, if you could be bothered to actually read the opinion, all of it, and understand what was said in the opinion.


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Overitall said:

ICE was wrong. Note the primary reason why they were wrong.

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My heavens. Seriously man? The opinion doesn’t assert, claim, or declare only citizens are entitled to constitutional protections. It has long been determined by the Court that some constitutional rights are not limited to citizens, and Due Process is one such right.

It doesn’t take a Ph.D in astrophysics, or an LLM to understand what the plain text doesn’t seek to conceal, which is the word “person” in the Due Process Clause isn’t limited to citizens. Especially when the framers specifically used the word “citizen” elsewhere in the Constitution as a limiting qualifier!

If the framers wanted to use “citizen” as a limiting qualifier for Due Process, as they did elsewhere, then they would have done so, since we can surely infer they know how to use the word “citizen” as a limited qualifier because they did elsewhere in the Constitution. Now, that’s just textual reading of the document, there’s the meaning of the word “person” in 1790 to take into consideration, along with the historical and legal development.

There is no evidentiary support for your broad claim none of the rights and protections of the Constitution apply to non-citizens. None. Specifically the 5th Amendment, which applies to “person.” “[N]or shall ANY person,” is how the phrase reads, “ANY person,” and not “Any citizen.”


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Empirica said:

I totally get the "Immigration" part but what I don't get is the whole "Illegal Immigration" fiasco.

Deport them immediately if not sooner and declare them forever ineligible for future US Citizenship.

Illegal Immigration will never end until the US secures its borders and induces mass self-deportation.

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That won't end it. It is not possible to secure the borders to prevent illegal immigration without stopping all travel in and out of the U.S., and you can't deport someone who comes in legally but doesn't leave if you don't know where they are.

The one and only way to stop illegal immigration is to raise the standard of living in the places where they are coming from, or lower the standard of living in your own country to below the standard of living in theirs. If both of these are out of the question for you, then you are stuck with a permanent state of constant illegal immigration. Finding a way to make it easier for these people to become a citizens, or spending tax money on a never ending game of cat and mouse you will never win are your only two choices in that situation. No walls or ICE money are going to change that. Walls and ICE are ultimately barely better than open borders.

Overitall said:

I disagree with Scalia.

https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=4977&context=flr

Others on the SC have also.

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Great. You are entitled to disagree. Just as flat earth people disagree with those who believe the earth is spherical, a sphere. But the flat earth people lack persuasive, sound, rational, scientific evidence for their view, and lack rebuttal evidence to the claim the earth is a sphere, just as you can disagree with Scalia, but lack persuasive, rational evidence and argument for your view or to show Scalia is wrong.

Evidence and reasoned argument matter, not mere, “I disagree,” and you have none for your view, you have none showing Scalia is wrong. Yet there’s plenty of evidence for Scalia’s view, and the argument for his view is strong.

Which is a polite way of saying your disagreement is not persuasive or strong.

AND you are citing to protections under the “law of nations” which is a reference to international law! The problem you commit as nauseum is your misuse of phrases that have legal meaning. The “law of nations” is separate and distinct from the domestic law of the Constitution and the domestic law which is the 5th Amendment and its Due Process Clause.

Didn’t occur to you to be inquisitive as to the meaning of the phrase “law of nations”?


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Overitall said:

We can arrest a diplomat. They can claim diplomatic immunity under international law. But even that has limitations.

It’s not just my disagreement. As I’ve been trying to point out men and women of scholarly minds have disagreed. That’s why we have a SC. But even the justices of the SC don’t always agree. That’s why we have a majority opinion and a minority one. On this issue, as with any, I can disagree with the SC’s decision. You do know that, right?

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Yep, you can disagree. Whether your disagreement makes sense is something else entirely.


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lwf said:

That won't end it. It is not possible to secure the borders to prevent illegal immigration without stopping all travel in and out of the U.S., and you can't deport someone who comes in legally but doesn't leave if you don't know where they are.

The one and only way to stop illegal immigration is to raise the standard of living in the places where they are coming from, or lower the standard of living in your own country to below the standard of living in theirs. If both of these are out of the question for you, then you are stuck with a permanent state of constant illegal immigration. Finding a way to make it easier for these people to become a citizens, or spending tax money on a never ending game of cat and mouse you will never win are your only two choices in that situation. No walls or ICE money are going to change that. Walls and ICE are ultimately barely better than open borders.

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Actually; it's not nearly as complicated nor difficult as you have suggested to bring a halt to illegal immigration.

Or even to leave the illegal aliens already here, with no other choice but to self-deport and at their own expense.

The US need only to deprive them of the magnets that draw them here in the first place...and what are those magnets?

No jobs, no housing, no social services, no education, no medical care, no 14th amendment loophole, and No Amnesty!

And add this stipulation to US Immigration Law....."Deportees and Illegal Aliens will forever be ineligible for US Citizenship".

And enact laws making people legally accountable for aiding and abetting or providing forbidden magnets to illegal aliens.

When these things are no longer available; illegal immigration will end and those here illegally will leave...and it will be over!

Empirica said:

Actually; it's not nearly as complicated nor difficult as you have suggested to bring a halt to illegal immigration.

Or even to leave the illegal aliens already here, with no other choice but to self-deport and at their own expense.

The US need only to deprive them of the magnets that draw them here in the first place...and what are those magnets?

No jobs, no housing, no social services, no education, no medical care, no 14th amendment loophole, and No Amnesty!

And add this stipulation to US Immigration Law....."Deportees and Illegal Aliens will forever be ineligible for US Citizenship".

And enact laws making people legally accountable for aiding and abetting or providing forbidden magnets to illegal aliens.

When these things are no longer available; illegal immigration will end and those here illegally will leave...and it will be over!

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Most of those laws are already on the books. They are just hard to enforce, or the enforcement is focused on the illegals themselves rather than on the businesses that hire them. If someone with no identification needs emergency medical care and goes to a hospital, how are you going to prevent them from receiving it? What are you going to do to doctors that refuse to violate medical ethics?

The magnet that attracts illegal immigration is simply the opportunity for a better life in America. If the alternative is starvation or genocide in their own country, no amount of risk imposed by U.S. immigration laws will be a deterrent. Ducking ICE, risking "permanent" deportation, and living off the grid is preferable to the vast majority of illegal immigrants than living in their home country.

NWRatCon said:

It may be unanswered, but that is a confusing effort to do so. It is well-settled law that the federal government may not coerce State entities to to enforce federal law, as the Supremacy reference implies. I don't think that addresses your question.

Your question, as I interpreted it, was if a State could refer the matter to a federal Article III court. My concern would be establishing whether the State would have standing to raise the issue. Here's why:

If the State entity receives a detainer request, it can either comply or decline to enforce it. It cannot be required to comply. In the absence of a requirement, there is no case or controversy for the Court to adjudicate. The State retains free will. If the federal government seeks to coerce the State into compliance, then there would be a conflict that could be adjudicated. I don't think the State can go to court to prospectively ask the question, though.

I do think that the State has an interest in the fair treatment of denizens under their control, but their option is to simply release the individual when no longer subject to State proceedings. So, the question is still unanswered, but I think that's a better analysis. It is a good thought, though.

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"Novel" and "unique" does not go over well "in law". Such as passing state law that directs local/state law enforcement to deliver/arrange/accommodate undoc to fed courts, for due process, bypassing fed enforcement (ICE). Free will of the state and no fed coercement there. Of course, all law is passed, and new action taken, prospectively.

The 9th Circuit generally rules that the US Constitution is unconstitutional.