Remedying Unconstitutional Immigration Enforcement

Authors

Guha Krishnamurthi, University of Maryland Francis King Carey School of Law

Volume

2025

First Page

68

Last Page

89

Publication Date

2025

Document Type

Article

Abstract

Fearmongering about “illegal immigration” has reached a fever pitch. There is a nearing bipartisan consensus among politicians that “stopping illegal immigration and securing the border” is a paramount priority. The fact that many politicians and institutional actors have displayed animus in discussing immigration enforcement portends that many perils lie ahead. It is precisely during this time that constitutional rights must serve as a bulwark against government overreach. This Essay contends that our constitutional rights framework, specifically its principal remedies for rights violations, are inadequate to protect against government malfeasance. In particular, I demonstrate that there are plausible scenarios where the government immigration authorities will flagrantly violate individuals’ Fourth Amendment rights, yet face no consequences—leaving individuals with no recourse. That is because the main constitutional remedy—the exclusionary rule—has doctrinal limitations in the area of immigration enforcement. I contend that this is inconsistent with the Court’s own justifications for the exclusionary rule, and thus this state of affairs cannot stand. Consequently, I propose a more robust exclusionary rule—what I call the Proceeding Exclusionary Rule—for situations where the government engages in willful, widespread, egregious Fourth Amendment violations.

Recommended Citation

Guha Krishnamurthi, Remedying Unconstitutional Immigration Enforcement, 2025 Cardozo L. Rev. De-Novo 68 (2025).
Available at: https://larc.cardozo.yu.edu/de-novo/111