Via the representatives Americans elect to Congress, they exercise their sovereign right to determine who may immigrate to and remain in their country—supposedly. But last spring, in a case largely overlooked by many immigration patriots—at the time immersed in the battle against H.R. 15, the Amnesty/ Immigration Surge bill—U.S. District Court Judge Janice M. Stewart, a Clinton appointee, undermined that right and the sine qua non of the American republic: the consent of the governed. Congress can and must act to repair the damage.
On April 11 in Portland, Oregon, Judge Stewart (a Clinton appointee) ruled that Clackamas County infringed the alleged Fourth Amendment rights of Maria Miranda-Olivares, a foreign national, when it honored the federal Immigration and Customs Enforcement agency's request to detain her in the county jail for investigation into the legality of her U.S. presence after her state domestic-violence charge had been resolved. After that resolution, wrote the judge, "the county no longer had probable cause to justify her detention" absent a warrant or court order. [PDF](ICE's investigators, not incidentally, determined that Miranda-Olivares was here illegally.)
Within days of the ruling, sheriffs in most Oregon counties announced they no longer would assent to ICE detainer requests sans a warrant or court order. [Sheriffs Limit Detention Of Immigrants, By Julia Preston, NYT, April 18, 2014] In the six months since, according to the Catholic Legal Immigration Network, one state (Rhode Island) and more than 230 cities, counties, sheriff's offices, police departments and corrections agencies in 23 other states have adopted similar policies. They range, reports the Network,
from broad limitations prohibiting local law enforcement from honoring any ICE detainer requests to more narrow measures restricting compliance to cases where ICE has obtained a warrant from a judge backed by probable cause, or when ICE has agreed to reimburse the locality for the costs of the detention, or when the individual has been convicted of a certain felony or other serious crime.[States and Localities That Limit Compliance with ICE Detainer Requests (Oct 2014)]
And that's not all: Judge Stewart's ruling evidently provided impetus to—or, perhaps, cover for—the Obama administration's years-long effort to "normalize" illegal aliens, including its pending, post-election administrative amnesty.
As "city and county jails across the country increasingly refuse federal requests to hold foreigners who've overstayed their visas or slipped across the border," reported the Los Angeles Times' Christi Parsons and Brian Bennett shortly after the ruling,
the Obama administration is moving toward a new policy that would limit deportations chiefly to [illegal] immigrants who have been convicted of violent crimes . . . In private meetings with police, [U.S. Secretary of Homeland Security Jeh] Johnson has said he is considering limiting when immigration agents can contact local jails to ask them to hold undocumented immigrants.
So Judge Stewart's ruling has had, and likely will continue to have, a profound impact on the enforcement of immigration law. But it is wrong for a fundamental reason:
The Fourteenth Amendment, and its "equal protection of the laws" clause, ratified in 1868 to assure citizenship to freed slaves, were never intended to extend constitutional rights unqualifiedly to foreign nationals. In Demore v. Kim (2003), for instance, the U.S. Supreme Court, as explained by Georgetown University law professor David Cole, affirmed "preventive detention [of foreign nationals] without any individualized assessment of the need for detention." Indeed, wrote the Court in Demore, when regulating immigration, "Congress regularly makes rules that would be unacceptable if applied to citizens."
And of foreign nationals who deliberately violate our immigration laws? In 1982, Chief Justice of the United States Warren Burger and several associate justices declared unequivocally: "Illegal aliens have no right whatever to be here."
By ruling in Miranda-Olivares’ favor, however, Judge Stewart ascribed such right to her. In doing so, she effectively empowered foreign nationals here illegally to undermine Americans' efforts to regulate immigration to their own country.
VDARE.com has repeatedly argued that judges who legislate i.e. arbitrarily reinterpret the law according to their personal preferences should be made to face elections. I.e. impeachment.
There is simpler a way, however, that Congress could reverse Judge Stewart's ruling—and prevent others like it in the future.
"The Congressional power to ordain and establish inferior courts," wrote Harlan Fiske Stone, Chief Justice of the United States in the mid-20th century, of the constitution's Article III, "includes the power of…withholding jurisdiction from them in the exact degree and character which to Congress may seem proper for the public good." [Lockerty v. Phillips, 1943]
In the issue at hand, what constitutes "the public good"?
Americans, by way of their elected representatives, created ICE to enforce immigration laws in the country’s interior. When ICE, then, determines that a foreign national in a local law-enforcement agency's custody should be held for investigation into the legality of his or her U.S. presence, it should be able, absent courts' interference, to compel that foreigner's continued detention until its investigation is complete.
To that end, Congress should pass legislation mandating that ICE detainers be binding on local police and sheriffs—and cite the constitution's Article III to safeguard it from unelected district and appeals court judges' review.
Of course, President Obama likely would veto such bill. But that would force him to admit his Administration’s hostility immigration law enforcement. His successor might well find it acceptable.
At the least, via such move, Americans' elected representatives would proclaim to federal judges: U.S. citizens' right to protect their territorial integrity should trump any court-devised "right" of foreign nationals to contrive to remain in our country illegally.
Richard F. LaMountain (email him), a former assistant editor of Conservative Digest magazine, served on the board of directors of Oregonians for Immigration Reform between 2009 and 2013. He was a chief sponsor of the referendum to repeal Oregon's law granting driver cards to illegal aliens, which will be on the state's ballot in November