ICE releases letter claiming they do not need a warrant for arrests - are Gestapo comparisons valid?

[Melbourne]

@Budget_Player_Cadet

The reason we “never forget” in the first place is that remembering what happened is a good way to stop it from happening again. If the steps society took towards fascism in the past are some holy, untouchable relic of the past where any comparison is insulting, then what’s even the point of remembering it to begin with? Just forget the lesson; you’re certainly not going to be using it any time soon. .:

This.

[Bone]

@Max_S

… My own analysis is short. …

I’m snipping the post because it’s long. I appreciate the thought out reply, but ultimately you’re analogizing criminal matters to civil matters, and not just any civil matters, civil immigration matters. Congress has spoken on this issue and through their actions have delegated and defined what constitutes due process, hearings, burdens of proof, etc.

I mean, you say that the 4th amendment requires a judicial determination of probable cause, and cite (Gerstein v. Pugh, 1973). But as the ICE letter notes and has been upheld when tested, civil arrests by ICE do not require a judicial determination and cannot because Congress has dictated who may review probable cause in terms of immigration matters, and it’s not the judiciary.

There is a persistent argument that oft times undocumented immigrants have committed no crime because overstaying a visa, or merely being in the country without authorization is not a crime - it’s typically a civil infraction. That’s true, but it also means that these individuals are not afforded all of the protections and process that being accused of a crime would entail. Whether this is good or bad, Congress has spoken on this matter.

[thorny_locust]

But Congress doesn’t have the final say on what is and what isn’t constitutionally forbidden.

[Max_S]

@Bone

I mean, you say that the 4th amendment requires a judicial determination of probable cause, and cite (Gerstein v. Pugh, 1973). But as the ICE letter notes and has been upheld when tested, civil arrests by ICE do not require a judicial determination and cannot because Congress has dictated who may review probable cause in terms of immigration matters, and it’s not the judiciary.

It doesn’t need to be an article III judge, just a “neutral and detached magistrate”. The current DHS policy attempts to fulfill the requirement from Gerstein by having an immigration enforcement officer make that determination. For reasons that should be obvious, having one enforcement officer review another enforcement officer’s probable cause determination presents a conflict of interest at best. It helps none that the regulations currently allow the same officer who made the arrest to validate their own probable cause determination, as if one man or woman could review their own decisions in the capacity of a “neutral and detached magistrate”. The regulations as currently stand are crying out for rubber stamps.

@Bone

There is a persistent argument that oft times undocumented immigrants have committed no crime because overstaying a visa, or merely being in the country without authorization is not a crime - it’s typically a civil infraction. That’s true, but it also means that these individuals are not afforded all of the protections and process that being accused of a crime would entail. Whether this is good or bad, Congress has spoken on this matter.

And it also doesn’t matter what Congress entered in the statute. The Constitution is supreme.

If you detain people, you trigger the Fourth Amendment. That much was explicitly held in United States v. Brignoni-Ponce for the context of civil immigration enforcement. Gerstein is a criminal case, but if you read the language, all of the rationale is based on the fact that the person is being physically detained. It can be argued that the 48-hour requirement was tailored for criminal cases and doesn’t apply. County of Riverside still requires the Gerstein hearing to take place “as soon as is reasonably feasible”.

~Max

[Bone]

@Max_S

It doesn’t need to be an article III judge, just a “neutral and detached magistrate”. The current DHS policy attempts to fulfill the requirement from Gerstein by having an immigration enforcement officer make that determination. For reasons that should be obvious, having one enforcement officer review another enforcement officer’s probable cause determination presents a conflict of interest at best. It helps none that the regulations currently allow the same officer who made the arrest to validate their own probable cause determination, as if one man or woman could review their own decisions in the capacity of a “neutral and detached magistrate”. The regulations as currently stand are crying out for rubber stamps.

I personally don’t think it’s a great setup, but what you are arguing is that it’s not only poor, but also unconstitutional. I don’t think you’ve done that. The statutes that set up ICE as their own arbiters of probable cause are not new, and are certainly well spelled out. The letter in the OP references this.

And it also doesn’t matter what Congress entered in the statute. The Constitution is supreme.

Given that the law is longstanding, it would be ripe for challenge if it is unconstitutional. That there have been no successful attempts is not conclusive, but it does not help your argument. Yes the 4th is triggered when someone is detained, but 4th triggering is not at issue. At issue is what is considered due process and saying that criminal due process should be the same as civil due process is a straightforward and tidy rubric, it just doesn’t work that way right now.

[eschrodinger]

I find it helpful in discussions like these to specify when one says something is unconstitutional, whether one means it is so 1) under current Supreme Court precedent, 2) by extension of current Supreme Court interpretation of the Constitution, 3) by one’s own interpretation of the Constitution, but in keeping with Supreme Court Jurisprudence, or 4) by one’s own reading and contrary to, or without regard to, current Supreme Court doctrine in that area. It gets really confusing when one person is talking about 1, and another person is arguing 4.

[Really_Not_All_That_Bright]

Well, not really. You should just assume it’s (3) unless a citation follows.

[Max_S]

@Bone

I personally don’t think it’s a great setup, but what you are arguing is that it’s not only poor, but also unconstitutional. I don’t think you’ve done that. The statutes that set up ICE as their own arbiters of probable cause are not new, and are certainly well spelled out. The letter in the OP references this.

I will admit that the statute as read permits the current system. You are correct: my argument is that the current system is unconstitutional.

@Bone

Given that the law is longstanding, it would be ripe for challenge if it is unconstitutional.

And indeed it is currently being challenged. Think about it this way, take a look at Cancino-Castellar v. Nielsen (2018) and imagine if the Government was right about everything. Law enforcement officers can validate their own or their co-workers’ findings of probable cause, and that satisfies the Fourth Amendment. The suspension of habeas corpus until a final order of removal is entered does not violate the Suspension Clause.

Now think for just a minute what that means. That means one agency of the federal government has the power to detain anybody indefinitely, for any reason, without violating the Constitution. Neither you nor your family nor your lawyer can appeal to the courts for even injunctive relief if they never get around to entering a final removal order. Is it possible that the Constitution offers no protection in such a scenario?

Of course not, that’s the Fifth Amendment violation.

@Bone

That there have been no successful attempts is not conclusive, but it does not help your argument. Yes the 4th is triggered when someone is detained, but 4th triggering is not at issue. At issue is what is considered due process and saying that criminal due process should be the same as civil due process is a straightforward and tidy rubric, it just doesn’t work that way right now.

I am not saying criminal due process should be the same as civil due process. I am saying due process for physical detention of a person should be the same across the board. The constitutional issues have nothing to do with the nature of the offense, and everything to do with the fact that the person’s liberty is restrained when detained. There must be procedures in place to prevent a Fourth Amendment violation such as the lack of an impartial administrative finding of probable cause promptly following a warrantless seizure of the person.

I recognize that procedural due process rules are slightly different for civil and criminal purposes, but before you start saying traditionally “civil” due process applies, do you realize what that means? Civil procedural due process usually means there is a fair hearing before the government deprives a person of liberty or property (Mullane v. Central Hanover Bank & Trust Co., 1950; footnote seven from Boddie v. Connecticut, 1971; also Bell v. Burson, 1971). That’s clearly not the case here.

~Max

Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950)
Boddie v. Connecticut, 401 U.S. 371 (1971)
Bell v. Burson, 402 U.S. 535 (1971)