Publication Date

2-2021

Journal

Stanford Law Review

Abstract

The common conception of a constitutionally sufficient warrant is one reflecting a judicial determination of probable cause, the idea being that the warrant process serves to check law enforcement. But neither the Constitution nor the Supreme Court has fully defined who can issue arrest warrants within the meaning of the Fourth Amendment; the constitutional significance of arrest “warrants” that are not; or when (if ever) warrants of any type are constitutionally required for deportation-related arrests. In that void, the largest federal law enforcement agency—the Department of Homeland Security (DHS)—is on pace to issue over 150,000 administrative “warrants” annually, authorized by only its own enforcement officers.

More than sixty years ago, in Abel v. United States, the Supreme Court recognized that administrative warrants authorizing arrest for deportation proceedings—“warrants” issued not by neutral magistrates, but immigration enforcement officers—give rise to a significant constitution-al question. The Court went on to muse in dicta that “deportation arrests” pursuant to this type of authorization have the “sanction of time” and the constitutional validity of this practice is “confirmed by uncontested historical legitimacy.” DHS and lower courts have relied heavily on this “forceful” dicta in the years since. But Abel missed and misunderstood critical aspects of the relevant history.

This Article takes a closer look at expulsion laws from the framing era, including likely the most broadly shared removal laws in the Early Republic. This examination shows that, in widely shared and deeply rooted expulsion laws of the time, arrest for purposes of civil removal proceedings—including for expulsion beyond sovereign borders—was not left to the unfettered discretion of the officers responsible for enforcement; these removal laws only authorized arrest pursuant to warrants, and those warrants were issued by magistrates or tribunals with judicial power. Ultimately, this Article argues that Abel’s dicta may be forceful, but it should no longer persuade.

This excavation is important in correcting the record, but has significant practical implications as well. It undermines the centerpiece of DHS’s defense of arrests pursuant to these warrants—Abel’s affirmation of uncontested historical legitimacy and the subsequent case law that has relied on it. More broadly, it gives courts a reason to consider the constitutional issue anew and casts doubt on the constitutional validity of a significant portion of interior immigration arrests.

Volume

73

Issue

2

First Page

433

Last Page

510

Publisher

Stanford Law School

Keywords

International Criminal Court, Courts, Criminal Law and Procedure, International Law, Victims, Victimology, Sexuality and the Law

Disciplines

Courts | Criminal Law | Criminal Procedure | Immigration Law | International Law

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