Immigration Enforcement & the Constitution

As President Trump’s immigration enforcement policies take effect, two separate bills are wending their way through the Maryland legislature (Frederick News-Post 2/22/17): Frederick County Senator Michael Hough’s bill would require 72 hours notice to the Department of Homeland Security before a person subject to a detainer notice would be scheduled to be released from state or local prisons. The bill also would allow correctional facilities to hold inmates up to an additional 48 hours in order to allow Homeland Security time to take the person into custody. The second bill, The Maryland Law Enforcement Trust Act, introduced by Senator Victor Ramirez of Prince Georges County and sponsored by Senator Ron Young, of Frederick County, explicitly states that local governments will not take part in federal immigration enforcement activities.

Frederick County Sheriff Chuck Jenkins testified at the hearing on Senator Hough’s bill that this would protect citizens from crimes or dangerous traffic violations “by a convicted criminal alien.” Indeed, the provisions of the bill do seem to be reasonable. An undocumented person who has committed a crime is subject to deportation, under both President Obama’s policy and President Trump’s. However, what Sheriff Jenkins and many people who think Senator Hough’s bill is a good idea do not understand is this: Once someone has been tried, convicted, and has served the required sentence, that person is no longer “a convicted criminal.” Even if that person is an undocumented immigrant, he or she is not “a convicted criminal,” but is simply in violation of immigration policy, and is entitled to an immigration court hearing before being deported.

Immigration policy and law must be established by the U.S. Congress. The only reason that immigration law has been defined by Executive Order (both Obama and Trump) is that the U.S. Congress has refused to deal with the problem. One result is that when state and local law enforcement comply with Executive Orders (which Senator Hough’s bill would require), immigrant communities no longer trust the local police. Communities are then put at much greater risk of crime because crime goes unreported. According to The New York Times (“Police Chiefs Say Trump’s Law Enforcement Priorities Are Out of Step” February 12, 2017):

The Law Enforcement Leaders to Reduce Crime and Incarceration [comprising] more than 175 police officials and prosecutors . . .) warned that “failing to direct . . . resources toward our most immediate and dangerous threats risks wasting taxpayer dollars,” singling out using federal money on “dragnet enforcement of lower-level offenses.”

Some police chiefs and sheriffs have complained that immigration enforcement is not consistent with their priorities and could undermine hard-earned trust. “I would rather have my officers focused on going after violent criminals and people breaking into homes than going after nannies and cooks,” Chief Art Acevedo of Houston said.

All of us – Sheriff Jenkins, Senator Hough, and others who despite my argument would deem undocumented immigrants to be “criminal aliens” – need to become familiar with the Constitution. In these days especially, everyone should keep a copy of the Constitution handy in the glove compartment of our cars, in our pockets, in our wallets, on the side-table next to the popcorn while watching cable news. I call attention especially to the Fifth Amendment Due Process Clause: “No person . . . shall be deprived of life, liberty, or property, without due process of law.” The U.S. Court of Appeals for the Ninth Circuit cites this provision and case law as part of their argument denying the Trump Administration’s emergency motion for a stay pending appeal of the Washington district court’s order temporarily blocking the implementation of President Trump’s Executive Order13769, “Protecting the Nation From Foreign Terrorist Entry Into the United States.” In its Order the Ninth Circuit stated:

The procedural protections provided by the Fifth Amendment’s Due Process Clause are not limited to citizens. Rather they “appl[y] to all ‘persons’ within the United States, including aliens,” regardless of “whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001). Ninth Circuit Order, pp. 20-21.

The Congress and the courts will have to determine the constitutionality of President Trump’s executive order regarding Homeland Security regulations. Meanwhile, law enforcement would do well to err on the side of the Fifth Amendment Due Process Clause, and respectfully decline to be deputized as Immigration Customs Enforcement agents. In addition, Sheriff Jenkins and other well-meaning citizens should consider the consequences when communities no longer trust the police.

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