Excerpted From: Lindsay Nash, Inventing Deportation Arrests, 121 Michigan Law Review 1301 (June, 2023) (402 Footnotes) (Full Document)

lindseynashAt the dawn of the federal deportation system, the nation's top immigration official proclaimed the power to authorize deportation arrests “an extraordinary one” to vest in administrative officers. He reassured the nation that this immense power--then wielded by a cabinet secretary, the only executive officer empowered to authorize these arrests--was exercised with “great care and deliberation.”

A century later, this extraordinary power is legally trivial and diffuse, systemically exercised by low-level enforcement officers alone. As a result, thousands of these officers--the police and jailors of the immigration system--have the power to solely determine whether deportation arrests are justified, and therefore, whether to subject over a hundred thousand people annually to the extended detention and the bare process of our modern deportation system.

In some sense, the administrative power to authorize deportation arrests has remained “extraordinary,” an anomaly in even our now-vast enforcement state. That is because in most other contexts, arresting officers remain constrained by a neutral-and-detached-review rule. The rule requires them to either obtain a warrant pre-arrest by demonstrating probable cause to a judicial officer, or, in circumstances where an ex ante warrant is not required, promptly seek a judicial determination of probable cause post-arrest. To be sure, “judicial” in this context does not always refer to a judge in the technical sense and its boundaries remain undefined, but it has long been clear that these “judicial” officers deciding whether an arrest would be (or was) valid must possess two critical characteristics: neutrality and detachment from the prosecution. And while the application of this rule can be complicated, the animating premise is not: 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.

But in the civil immigration arrest context, low-level enforcement officers alone make these calls. No magistrate--not even a neutral administrative officer--deliberates over the permissibility of the arrest beforehand. No neutral officer evaluates probable cause after the fact. Instead, enforcement officers--typically low-level enforcement agents--occupy the role that judicial officers play elsewhere. These officers either sign off on the validity of arrests beforehand by signing an administrative form labeled “warrant” or make the arrest without any review of the validity of the arrest, even after it has taken place. And while the neutral-and-detached-review rule governing arrests in nearly every other context seeks to prevent reliance on the potentially biased assessment of officers involved in the very arrest under review, immigration enforcement diverges there too: not only are probable cause determinations made by enforcement officers within the prosecuting agency, they may be made by officers “intimately involved” in the investigation or even the arrest itself. In other words, immigration enforcement officers alone authorize their colleagues or even themselves to arrest and detain people for civil immigration prosecutions.

The consequences of this arrest regime are as troubling as they are predictable. Freeing 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 resulted in an incalculable number of days of unlawful and unnecessary detention, as even nondeportable people who are arrested may remain detained for weeks or months before their removal proceedings commence and sometimes years before their removability is ultimately determined. It has also resulted in unjust deportations, as even arrests that violate the statute or Constitution often do not result in the exclusion of evidence or termination of removal proceedings.

Although deportation arrest practices conflict with otherwise foundational arrest constraints, they have long been justified by the notion that, historically, deportation arrest authority has been placed in executive hands. This narrative did not originate in 1960, but it assumed constitutional import then, when the Supreme Court blessed it in dicta in Abel v. United States. There, the Court considered a Fourth Amendment challenge based on the fact that the petitioner's deportation arrest was executed pursuant to a warrant issued by an administrative officer. Despite ultimately declining to decide whether the Constitution required that a judicial--rather than executive--officer issue warrants in the deportation arrest context, the Court devoted five pages of the opinion to describing what it saw as the “long-sanctioned” use and “uncontested historical legitimacy” of purely executive probable cause determinations for deportation arrests. And, largely on this basis, the Court all but affirmed the “constitutional validity” of the arrest procedure used in Mr. Abel's case.

Based on Abel's “forceful” account of this history and the perceived historical sanction for deportation arrests authorized only by executive officers, the government--with nearly unbroken success--has defended its modern arrest practices in litigation. Courts have long rejected challenges to these arrests based on the purportedly “overwhelming historical legislative recognition of the propriety of administrative arrest for deportable aliens,” and the assumption that the “historical development of immigration proceedings” shows the longstanding belief that “administrative officers and not neutral magistrates [may] make the probable cause determinations” for deportation arrests. The government has also used this narrative to deflect public criticism, arguing that its current arrest practices are lawful because “[t]he Fourth Amendment has long permitted civil immigration arrests and detention, regardless of the fact that probable cause determination for such violations are made by Executive Branch officials rather than a magistrate.”

But this account omits aspects of deportation arrests' history that are critical for evaluating the constitutional validity of the deportation arrest scheme today. I argued in a prior article--Deportation Arrest Warrants--that Abel's description of the deportation arrest system at the time of our nation's founding was flawed because the majority misunderstood the only federal law it analyzed and missed states' removal laws, which were the most prevalent removal laws in the framing era. This Article turns its focus to the first federal deportation arrest regime, which emerged a century later. It argues that the conventional account ignores key--long seen as crucial--distinctions between the officers conducting investigations and arrests, and those adjudicating whether there was probable cause for the arrest. Specifically, Abel failed to distinguish, in the historical evidence on which it relied, between the roles of the executive officers who were permitted to authorize deportation arrests and those who were actively involved in investigation and prosecution. More recent decisions have compounded this error by ignoring the fact that immigration enforcement practices have changed in important ways since Abel was decided, including by devolving the power to authorize arrests onto lowerand lower-level enforcement officers.

Despite these distinctions and the weight that the perceived historical legitimacy of deportation arrest practices has carried in contemporary doctrine, this account of how the power to authorize federal deportation arrests developed and who could exercise it remains largely unexamined--and unchallenged as a result. Many scholars have written thoughtfully about flaws of the deportation arrest system based on modern theory and doctrine. And others have discussed specific aspects of arrest procedures and practices in work focused on other facets of the federal immigration system's development. Perhaps the most in-depth prior work has been done by historian S. Deborah Kang, who provides important insights on changes to immigration-related arrest practices and authority from 1925 through the 1940s in her powerful institutional history of early immigration enforcement in the nation's southern borderlands. Yet despite the magnitude of these prior contributions, the larger, longer story of the invention and development of the deportation arrest regime and its connection to the justification for our modern scheme remains untold.

This Article takes on that project. Drawing on a range of sources, it explores the question of how this once “extraordinary” and confined power to authorize deportation arrests became legally trivial and largely unconstrained. It not only provides the first account of the invention and development of federal deportation arrest authority from its inception to the modern day, but also one that differs from and complicates the conception of what was accepted in terms of executive probable cause determinations for deportation arrests. Specifically, it reveals an early system of federal deportation arrest procedures that, even at a time of virulent hostility toward immigrants and overtly racist immigration regulation, was designed to impose significantly greater checks on enforcement officers' arrest authority and provide more robust independent review than does the immigration scheme today. And it shows that, while substantial deportation arrest authority was placed in executive hands in the early federal system, the executive branch was not authorized to implement this authority in any way it saw fit or, as it does today, place this “extraordinary” power in low-level enforcement officers' hands. This Article also explains why that eventually changed and uses new information obtained through Freedom of Information Act litigation to provide fresh insight into who actually authorizes these arrests today. Ultimately, this Article contests the conventional narrative that the modern deportation arrest regime is justified by its past and casts doubt on the near-unanimous case law that has relied on it. In so doing, it provides reason for courts to reconsider the constitutional validity of this scheme and historical support for calls to fundamentally transform the deportation arrest system.

This Article proceeds in five parts. Part I explains who authorizes arrests in our modern immigration enforcement regime and how this process has been justified. Part II begins the inquiry into the history, examining the adoption and implementation of the first federal laws authorizing deportation arrests, a system that, though administered largely within the executive branch, was structured to provide independent probable cause review pre-arrest and reserve the weighty decision of whether an arrest was justified to the highest echelons of government power. Part III examines how nativist legislation transformed the federal immigration bureau's work and created administrability challenges for this regime. It also shows how Congress and the agency long resisted calls to “subdelegate” to lower-level officers the power to authorize deportation arrests in our nation's interior. Part IV describes how--amid a world war and approximately sixty years after the advent of federal deportation arrests--the longstanding deportation arrest procedures ultimately began to change, and it traces the subsequent subdelegation of the power to authorize these arrests. Using this history and previously unreleased information about contemporary arrest practices, this Part sheds new light on how the government currently wields this extraordinary power and shows that, in some respects, our modern deportation arrest scheme is not part of longstanding practice at all, but rather is new--and novel--in significant ways. Part V considers implications, explaining that some of the key practical constraints that shaped the development of our modern scheme are no longer present, but the risks of vesting such extraordinary authority in low-level enforcement officers remain as strong today. It argues that, more fully understood, the history of federal deportation arrests seriously undermines existing case law and justifies not the system in place now, but a dramatically different one in which structurally distinct, detached, and neutral officers determine probable cause for purposes of arrest and detention.

[. . .]

The long-accepted history of the federal deportation arrest scheme has been essential to its preservation, undergirding and insulating an enforcement regime that diverges dramatically from otherwise foundational arrest constraints. Yet 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.

Associate Professor of Law, Benjamin N. Cardozo School of Law.