The Grand Illusion
The other day, I got to thinking about why the Department of Homeland Security could unilaterally change immigration laws so that people who were legally in the country one day were classified as illegal immigrants the next. To me that seemed so at odds with the ex post facto clause in the Constitution.
The answer to that question is a bit frightening.
While the Constitution prohibits specifically retroactive laws (Article I, Section 9, Clause 3), this prohibition applies only to criminal cases, not civil matters, and immigration is considered a civil matter, even when the government is using criminal justice mechanisms, such as incarceration facilities and police powers, or carrying out actions like deportation or visa revocation.
Despite the fact that immigration is considered a civil matter, illegal immigration is made a federal crime in the United States, primarily through 8 U.S.C. § 1325 (Improper Entry by Alien) and 8 U.S.C. § 1326 (Reentry of Removed Aliens)
The classification of immigration as a civil matter is not addressed in the Constitution, but was established by in Fong Yue Ting v. United States, 149 U.S. 698 (1893). This ruling also determined that deportation is not “punishment” in the legal sense, but rather the government’s refusal to allow someone to remain, and because they are not considered “punishments,” Congress or the Executive Branch can retroactively apply new immigration grounds for exclusion, even if those grounds did not exist when the non-citizen entered the country. In addition, statutes, such as those that make past criminal activity grounds for deportation (e.g., membership in certain organizations or criminal behavior), can be applied to actions taken before the law was passed.
So, if every major law dealing with unauthorized immigration is a criminal statute, how can immigration enforcement be a merely civil matter?
As a side note, while subsequent Supreme Court decisions have maintained the legal fiction established by the Fong Yue Ting precedent, I can’t find any legal reason why Congress couldn’t pass a law declaring that any immigration proceedings should be considered as criminal matters, given that the government is already treating them that way, except without many of the procedural safeguards required Constitutionally in criminal proceedings involving U.S. citizens.
I guess you’re saying DHS is making it up as they go? Not a surprise.
They are certainly making up ‘facts’ regarding every violent interaction the agents are seen to make. Now another citizen dead in Minneapolis at the hands of ICE/CBP.
Neil Young, we need you now. We need a new anthem at this time.
Neil Young would be good. I’m beginning to think, though, we need another George Washington.
Here you go
Neil Young and the Chrome Hearts – Big Crime
https://www.youtube.com/watch?v=8B9ATiGpbl8
Yes, I heard that during last Farm Aid. But that speaks to the corruption angle, at least to me. We need something that speaks strongly to the murder issue being waged by ICE and CBP. Ohio was that song in the Nixon / Kent State era. This is far worse and I’m not sure where this will stop.
Pekka Mäkinen:
Kaikkialla maailmassa tarvitaan ‘rohkeutta’ – tai paremminkin ‘Sisu’. Ehkä ei – se on Trumpin ’kaava’ ja anarkistien tavoite.
Everywhere in the world there is a need for ‘guts’ – or better ‘Sisu’. Maybe not – that is Trumps ‘pattern’ and the anarchist’s goal.
On my reading of:
https://www.law.cornell.edu/wex/ex_post_facto
and
https://law.justia.com/constitution/us/article-1/70-ex-post-facto-laws.html#:~:text=SECTION%2010.,clearest%20proof%E2%80%9D%20of%20punitive%20effect.
and
https://www.law.cornell.edu/wex/bill_of_attainder
“Bill of Attainder”
In the United States, no office, body, or level of government—neither Congress (federal) nor any state legislature—is allowed to pass an ex post facto law.
Such laws, which retroactively make criminal a legal action, increase punishments for past crimes, or change legal rules to the disadvantage of an accused person, are explicitly forbidden by the U.S. Constitution.
and
The Court accords “considerable deference” to legislative intent; if the legislature’s purpose was to enact a civil regulatory scheme, then the law can be ex post facto only if there is “the clearest proof” of punitive effect.
and
Courts apply a three-part test to determine whether a law is an unconstitutional bill of attainder:
The law must impose punishment.
It must target specific individuals or identifiable groups.
It must do so in a manner that bypasses judicial protections.
My argument being that changing a civil action into a criminal act does change the punishment (if only because of absence of the requirement of trial by jury in criminal law). and thus makes the core legislation or practical determination by the Federal or State government ex post facto.
LEM, This is slightly off topic, but I wanted to raise it as a debatable talking point. The Minnesota events have pundits and politicians weighing in on how effective the use of widespread non-violent protest has been recently in Minn. However hopeful we can be, I see no evidence (yet) that the strategy is effective in this current political climate against this current regime. George Packer, in The Atlantic, just wrote an opinion piece that restates the current political era we are experiencing is unprecedented and yet calls for engaging using traditional non-violent resistance to effect change. I hope all this is true, but I’m deeply skeptical.
I was in Philadelphia last week visiting a sibling and we had the opportunity to visit The Museum of the American Revolution. It was a moving experience and may not be the most well known of the museums, but is a vast and deep collection of all things related to the 10 years leading up to the US declaration of independence and the succeeding war. In that historical account the story tells of the unsuccessful almost 10 years of non-violent resistance to England’s oversight of the colonies. A change in strategy to include violent resistance (The Boston Tea Party among other actions like tarring and feathering) to incite over-reaction from the British and unify the colonists did, in fact, work in changing broad opinion against the British occupation.
In 1967, the Black Panthers began open carry and that prompted a rapid change to California gun laws (can’t have THOSE folks carrying).
Finally, two relevant points further. The threat of violence from their own base has become implicit among Republican politicians not to criticize Trump and that has been effective, apparently.
If the second amendment isn’t an implicit threat of violent resistance, then what is it? It’s interpretation by the current Supreme Court has been broadened in recent rulings, but dare I say that it might be broadened only for the right people?
I’m not advocating for this position necessarily, but I’d like to hear from others whether my take on history is way off base or rings true? Are there reasonable ways out of this mess we find ourselves in today? Will more marches help? Will believing in one person, one vote, do the trick? I’m pretty sure more letters to politicians isn’t working either.
James Malone, portrayed by Sean Connery, in the “The Untouchables,” is asked by Eliot Ness, about what he would bring to a fight. In response, Malone humorously replies, “They pull a knife, you pull a gun. He sends one of yours to the hospital, you send one of his to the morgue.” That is the tough and pragmatic approach to combat, emphasizing the importance of being prepared and ready to face the consequences of any confrontation.
In a nation: that leads to civil war. Our civil war did not change the union into a nation; the states maintained their supremacy over the federal government. That is one reason we facing this national complexity today.
“… Without a constructive answer, the danger is that Americans who find themselves without legal remedies will turn to illegal and violent ones. That would be a catastrophic mistake, both strategically and morally. That would be a catastrophic mistake, both strategically and morally. …”
I submit that George Packer in ‘What Should Americans Do Now?’ suggests – “We need a mass movement for basic decency” instead of a repeat failure like the last civil war.
Publicizing, documenting, the extortion perpetrated by MAGA elements against legislators might help. This administration has been shaped into a ruthless gang unconstrained by anything close to morals, ethics, law or the good of the nation or its people.
Limiting ourselves to that viewpoint is not good, but it _is_ very important not to lose sight of it. It should inform all tactics and strategy.
What we desperately need is a vision of the future that people can come together on. One that resonates better than murderous falsehoods and fascism. Being against it all does not provide a path forward to law abiding unity.
This aim of this fascist administration, the disolution of American democracy, can only by legally stopped by the legislature. Maintaining a somewhat free media will be needed; citizens protesting to make it clear what we believe and supporting each other and our representatives is needed. But w/out legislative action, there is no way to stop this take over but violence.
This is a religious war. The god is White Supremacy, the Idol/Oracle is the president. The power comes from wealth, from blandishment of Superiority and Dominance for those men that lust for it, the promise of slaves to those vested w/wealth that needs to maintain herds to milk and butcher to feed their position.
Because it’s a religious movement, for almost half the men in the country, it canNOT be countered effectively w/logic, nor compassion, nor even self interest.
Somebody said the Civil War did not create unity – so true. The slave culture was beaten w/force but never changed its beliefs. Just visit the museums and history displays in the South. Read between the lines. This is a struggle of beliefs, a struugle of ideas, a religious struggle, a dynastic struugle.
We need a vision to move people, and thus, hopefully, their legislators. Thomas Paine was one of the main forces that created the USA. W/out that tour de force captivating hearts and minds I have to doubt the USA would have born.
I was just looking this up today in the context of the asylum processes under Biden vs Trump. I appreciate your going through the history here.
Rather than having immigration be a criminal matter, I wonder if laws or amendments should be passed that apply the prohibition against ex post facto and bills of attainder to immigration law specifically, criminal or civil. I don’t think it would be great for all immigration issues to be criminal.
(I’m not sure why we wouldn’t want the ex post facto prohibition to apply to all laws, actually)
I’m sorry, I meant to post this as a new comment, not as a reply.