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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.


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