Inventing Deportation Arrests

Abstract

At 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 systemically exercised by low-level enforcement officers alone. Consequently, thousands of these officers—the police and jailors of the immigration system— now 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 bare process of our modern deportation system. This deportation arrest regime—still anomalous in our law enforcement system— has been justified by the notion that immigration enforcement has always been different when it comes to arrest constraints and that the validity of the modern deportation arrest system is evidenced through its history. This Article investigates and ultimately challenges those justifications. It focuses on the advent of administrative arrest authority in the federal immigration scheme and explores how the once “extraordinary” and confined power to authorize deportation arrests became legally trivial and diffuse. 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 conventional account in critical ways. Specifically, it reveals an early system of 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 more robust independent review than does the modern immigration scheme. This Article also describes why that eventually changed, providing important insight on why we are where we are 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 gives courts a reason to reconsider the constitutional validity of this scheme and provides historical support for calls to fundamentally transform the deportation arrest system.