During a Supreme Court argument in 2018, Justice Sonia Sotomayor bluntly declared that it was “lawlessness” for the government to jail immigrants arrested at the border indefinitely without a bond hearing. Her five conservative colleagues on the court thought otherwise, and ruled that the plain language of the federal immigration law allowed it.
One consequence of President Donald Trump’s order to send federal immigration enforcers to street-level duty in Portland, Oregon, is that Americans will get a better sense of the constitutional netherland in which these agents normally operate. In a short time, their conduct has already prompted investigations by the inspectors general of the Homeland Security and Justice departments. A federal judge issued an order on July 23 barring the federal agents “from arresting, threatening to arrest, or using physical force directed against any person whom they know or reasonably should know is a Journalist or Legal Observer...unless the Federal Defendants have probable cause to believe that such individual has committed a crime.” And Oregon Attorney General Ellen Rosenblum filed suit seeking a court order barring federal agents from unlawfully detaining Oregon residents, a request that a judge denied July 24 on jurisdictional grounds. In court documents, Rosenblum’s office challenged the Department of Homeland Security over “a federal strategy to terrorize Portland protestors, presumably in an effort to quell ongoing protests.”
Investigators in U.S. Customs and Border Protection and Immigration and Customs Enforcement are accustomed to making arrests without warrants, and then holding people for long periods of time without filing charges, and longer periods before a court hearing is granted. That’s because the usual constitutional protections that apply in criminal cases don’t help immigrants jailed pending possible deportation, a civil charge. The results of that are often shocking. Occasionally, the federal courts intervene, but the immigration law that Congress passed in 1996 (and is incapable of changing) sharply limits what a judge can do to protect detainees’s constitutional right to due process.