Trump's Mass Deportation Machine Would Likely Face Same Fate as Muslim Travel Ban in Federal Court
The federal courts, which so far have been the only institution blocking Donald Trump’s decrees, are poised to further impede his orders to ramp up immigration enforcement and create a mass deportation machine.
That’s because despite Trump’s harsh words for sanctuary cities and his threats to withhold their federal funding, sheriffs across the nation—who operate 85 percent of local jails—do not have clear legal authority to detain people who lack visas. Moreover, several class-action lawsuits are underway in federal and state courts where rulings have found Immigration and Customs Enforcement arrest and detention practices to be illegal, unconstitutional and leaving local governments liable for damages.
“They can’t deputize local law enforcement to do their dirty work. That’s exactly what these lawsuits are about,” Mark Fleming, National Immigrant Justice Center litigation coordinator said, referring to the preliminary rulings inclass action suits against ICE in Chicago and Los Angeles, and a pending suit in Massachusetts. “What they’re [ICE] doing now is unlawful and unconstitutional… That’s precisely the wedge that these lawsuits are intended to create.”
“If you’re talking about this area of detainers [ICE ordering sheriffs to hold migrants] and warrantless arrests by Customs Enforcement and other DHS officers, yes, they will try to push their policies—even though they have lost, quite clearly, in a number of federal circuits and a number of local courts,” said Paromita Shah, associate director, National Immigration Project of the National Lawyers Guild. “I really do think they will be opening a can of worms by going down this path where they feel they can operate with impunity and disregard the law.”
These comments by immigration law experts and the preliminary rulings in class-action suits they are referring to stand in stunning contrast to Trump’s executive orders and statements in which he has pledged to ramp up the deportation machinery. Like Trump’s Muslim travel ban, where the presidential rhetoric and decrees were issued with little regard for underlying constitutional rights and judicial precedents, his professed desire to accelerate deportations by expecting local police to assist will face similar hurdles.
Last week, Trump spoke to local law enforcement leaders in Washington and said he had their backs in a coming crackdown on criminals, including immigrants without visas. While many police in the audience liked Trump’s words, representatives who met with Homeland Security Secretary John Kelly said they needed more than assurances; they needed a “definitive ruling” from the U.S. Supreme Court on arrest and detainer policy, and they did not have that clarity nor the authority to do ICE’s bidding.
"It is absolutely clear from numerous court decisions that detainers do not meet constitutional standards to provide authority to detain, and it is perplexing that some sheriffs claim to still be in the dark," said Melissa Keaney, National Immigration Law Center staff attorney. "Litigation will be a major part of the strategy moving forward because it seems to be the only tool that clears up the confusion for some of these sheriffs."
In other words, no matter what President Trump says, current law and the litigation unfolding in federal court have been siding with immigrants, and those precedents would come into play to thwart any expansion of a mass arrest and deportation system.
The fact that sheriffs in some jurisdictions, like Austin, Texas, are already fighting with state officials over sanctuary city enforcement is further evidence that this controversy is heading to court, where battles may play out for years. But more importantly, class-action lawsuits filed years ago to stop ICE’s abuses in arresting people without warrants, telling local police to detain them and not speedily allowing those arrested to be charged in court, are coming to the fore, said National Immigration Justice Center’s Fleming.
“There are a couple of class-action lawsuits and a challenge to the Massachusetts Supreme Court that are actually in the late stages of getting a decision,” he said. “These are all cases that started under the previous [Obama] administration. So these are theories [arguments] that have been out there for a while, but are coming to a head on the merits at obviously the same time that the new administration has made the siren call that they are looking to arrest as many people as possible.”
“The two class actions that are direct suits against ICE are challenging the use of immigration detainers under a couple of different theories. Number one, that the use of detainers, when they are requesting local law enforcement arrest somebody, exceeds ICE’s arrest authority under the Immigration and Nationality Act and thus are all unlawful arrests. We have been successful already in getting a decision on that,” Fleming explained, referring to suits filed in Chicago and Los Angeles. “And then the other big claim, in both lawsuits under the Fourth Amendment, is that how ICE is using immigration detainers violates every person subject to them; their constitutional right to have a prompt judicial determination of probable cause [to charge them with a crime]. That usually is in the form of a warrant or a probable cause hearing within 48 hours of arrest. And in both lawsuits the allegation is they don’t provide it anytime, let alone within 48 hours, and they don’t get a warrant.”
Fleming said the oft-cited right-wing trope that non-citizens do not have any legal rights is wrong. “There are a number of Supreme Court decisions,” he said, where it “is crystal clear that anybody arrested in the United States has equal constitutional rights as to the deprivation of their liberty. Where things may become a little bit trickier, which we’re seeing play out right now, is with respect to people apprehended at a point of entry—at the border or an airport—it’s kind of a mix as to what constitutional rights they have.”
But he and the National Lawyers Guild’s Shah both emphasized that what's especially maddening about Trump’s immigration pronouncements is that they ignore the fact that ICE is currently behaving unconstitutionally when it comes to arresting and detaining immigrants.
“We are having this fight about the executive orders, the threat of stripping funding from 'sanctuary jurisdictions,'” Fleming said. “But what is being left out of that debate is, is what ICE is asking even legal, and certainly whether it’s constitutional. To the extent that we are right that it is unconstitutional, there’s long precedent that the federal government can’t coerce or require localities to do something that’s unlawful.”
Fleming also said it was uncertain whether local police had any authority to participate in a federal immigration dragnet.
“There’s one other case that even goes at it from a different angle, which is, let’s assume they are constitutional [ICE’s tactics], and let’s assume that they are the proper exercise of ICE’s warrantless arrest authority; the challenge that is going up to the Massachusetts Supreme Court on March 15 argues that state and local law enforcement don’t have the arrest authority under state law,” he said.
Shah said the issues go beyond how intrusive the federal government is and how it is violating the constitutional rights of those arrested. She said this White House doesn’t care if it is giving police bad legal advice.
“What I find particularly unfortunate about this administration is how they misrepresent the law, frankly, to law enforcement, in their efforts to support them,” she said. “There’s basically a misrepresentation of what a detainer actually is; some of these fundamentals where ICE has already conceded in litigation that these are not arrest documents, not arrest instruments. They just try to backtrack on all that.…”
Shah also said it was maddening how the administration is stepping on decisions made by hundreds of local governments not to assist immigration police, and how those jurisdictions that decided to help ICE leave taxpayers exposed to court-awarded damages when feds violate people’s rights.
“It’s not really just about constitutional rule only,” she said. “It’s really about decisions that many communities made and what the detainer [class-action suits] showed over time was how recklessly and how lawlessly ICE was using it in their enforcement operations. They never really tracked it properly and it violated people’s rights, and resulted in lots of erroneous detentions that created liabilities for the local jurisdictions.”
In other words, ICE’s arrest and detention policies were in legal hot water before Trump started issuing anti-immigrant decrees. But if the White House tries to rev up a deportation treadmill and demand local police help, Trump is more than likely to find that federal judges will suspend his orders—just like they did with his unconstitutional travel ban to seven Muslim countries—while civil rights lawyers gird for a long battle in federal court.