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73 Stan. L. Rev. 433 (2021)
Deportation Arrest Warrants

handle is hein.journals/stflr73 and id is 449 raw text is: ARTICLE Deportation Arrest Warrants Lindsay Nash* Abstract. 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 * 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. 433

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