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 within it, 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 by immigration-enforcement officers—give rise to a significant constitutional question. The Court went on to muse in dicta that “deportation arrests” pursuant to this type of authorization have the “sanction of time” and that the constitutional validity of this practice is “confirmed by uncontested historical legitimacy.” DHS and lower courts have relied heavily on this “forceful” dictum 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 prevalent 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 while Abel’s dictum may be forceful, it should no longer persuade.
This excavation is important in correcting the record, but it has significant practical implications as well. It undermines the centerpiece of DHS’s defense of arrests pursuant to administrative warrants: Abel’s affirmation of this practice’s uncontested historical legitimacy and the subsequent case law that has relied on it. More broadly, this Article 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.
* Assistant Clinical Professor of Law, Benjamin N. Cardozo School of Law. Many thanks to Kara Nowakowski, Jaynah Ross-Mendoza, and Keith Fernandes for excellent research assistance. I owe a debt of gratitude to Gregory Ablavsky, Spencer Amdur, Chris Buccafusco, Mary Fan, David Feldman, Myriam Gilles, Hirota Hidetaka, Kyron Huigens, Michael Kagan, Peter L. Markowitz, Gerald Newman, Kristin O’Brassill-Kulfan, Marisol Orihuela, Devin Slack, Stewart Sterk, Michael Wishnie, and the participants in both the AALS New Voices in Immigration Law Workshop and Cardozo’s Junior Faculty Workshop for helpful feedback and discussions. My thanks also to Ruth Wallis Herndon for generously sharing her primary research materials; the archivists at the Massachusetts and Georgia State Archives; Orin Kerr for valuable comments at an early stage of this project; and, last but not by any means least, Andrew Ascencio, and the staff of the Stanford Law Review for their incisive suggestions and editing.