Internet chatter is aggressively pushing back on this, arguing that Homan and the Trump administration are baldly shredding the US Constitution.
The reality is ... that's not quite true.
What Homan, ICE, and the Border Patrol are taking advantage of is another old law ... the 100-mile immigrantion enforcement zone from 1953, as the ACLU notes ...
While the ACLU takes the position that these stops often violate the Constitution, other organizations -- based on how the various federal courts have ruled -- share a different perspective. This is from Southern Border (dot) Org:
The courts fairly consistently held that Homan is correct here -- the much less stringent standard of "reasonable suspicion" as opposed to "probably cause" has been permitted to apply within this zone. "Reasonable suspicion" -- again, as more conservative courts have held for decades -- CAN include the same kind of physical description that would count as "racial profiling" in all other forms of police work.
In case you cannot really get a feel for it, here is the map of the placed where ICE and CDP technically do not have to follow the Constitution to stop and demand your citizenship papers:
As noted above, 200+ Americans live in this zone, including some entire states and key major cities like Los Angeles and New York. The ENTIRE STATES of Delaware, New Jersey, Connecticut, Rhode Island, Vermont, Maine and Wisconsin exist in this putatively Constitution-free zone.
THIS is how Grand Wizard Tom Homan can threaten to send thousands of ICE agents into cities like New York, Boston, Philadelphia, and Baltimore to literally "stop and frisk" without probable cause.
So, contrary to what your friends on the internet may be telling you, he's correct.
That doesn't mean he is in the right on this issue, but he does have a kind of point: President Trump is exercising and extending an Executive Power used by every President since Eisenhower, Republican or Democrat.
And for far too long Americans did not pay enough attention to understand that this was real. Most of use don't ride the buses that got stopped and searched like I did in 1974, 1978, and 1979 in coastal North Carolina.
Folks, Donald Trump has to be stopped.
But let's not kid ourselves: name your favorite President in your lifetime since 1953, and there's one thing I can tell you: he did not do shit to get rid of this intrusive, anti-Constitutional power, did not revoke it via Executive Order, did not ask Congress to change it, did not task his Attorney General to challenge it.
They are doing this to us because they Can.
And they CAN because we weren't paying enough attention.
For SEVENTY FUCKING YEARS.
Twenty years ago, I was raising the issue of the dilution or erosion of constitutional protections such as those presented by various immigration law standards, by FISA warrants, etc. I pointed this out in various articles, law journal pieces and in my 2004 book "Twilight of Democracy: The Bush Plan for America." I debated federal prosecutors and FBI agents about such things in public forums.
ReplyDeleteTo me, the 100 mile rule violates the Constitution. Period. I studied immigration law in law school and I worked at Immigration Court on asylum and deportation cases while a law student.
The way the gov't gets away with doing this is by establishing alternative branches of law that purportedly do not fall under the Constitution. Foreign terrorists are overseas -- but now we can extend FISA warrants to domestic terrorists without probable cause. Immigrants within 100 miles of the border (previously, it had been 2 miles, if memory serves me) now are anywhere. First it's illegals, then it's legal aliens. Then it's anyone.
David Cole wrote a whole book about this: "Enemy Aliens."
I personally agree that it violates the Constitution. Unfortunately, multiple court rulings have upheld it, at least in part. ICE/CBP are very good at deciding NOT to detain those they thing might be citizens, so if you are not personally detained you lack standing to bring a case. That may be changing.
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