ICE detainer ruling undermines immigration enforcement, U.S. sovereignty

“Preventing millions of foreigners each year from violating our nation’s immigration laws with impunity,” commentator Michael Lind has written, “is the central law-and-order issue of our time.” How ironic, then, when the people charged with safeguarding that law and order — America’s judges — aid and abet the immigration lawbreakers.

In mid-April, as reported by The Oregonian, U.S. District Judge Janice Stewart ruled that “Clackamas County violated a woman’s Fourth Amendment rights by holding her in jail 19 hours after her case was settled to allow (U.S. Immigration and Customs Enforcement) agents to launch an investigation into her residency status.” The woman, Maria Miranda-Olivares, a longtime illegal resident of Oregon, had been arrested by county authorities for violating a domestic violence restraining order. Once that charge had been resolved and she had served her sentence, she was detained by the county at ICE’s request until its agents took her into their custody.

Stewart disapproved. Absent a warrant or court order from ICE, “upon resolution of (Miranda-Olivares’) state charges, the county no longer had probable cause to justify her detention,” the judge wrote. “The Fourth Amendment requires that seizures be objectively reasonable in light of the facts and circumstances … prolonged detention after a seizure, such as full custodial confinement without a warrant, must be based on probable cause.”

Stewart’s ruling defies common sense. ICE is staffed by more than 20,000 employees, many of them attorneys, investigators and field agents expert in immigration law, who have access to copious intelligence on legal and illegal immigrants resident in our country. Was it not, then, “objectively reasonable” and sufficient in “probable cause” for Clackamas County to respect ICE’s request that it hold Miranda-Olivares, present in the ICE database as a possible deportable alien, for a few extra hours until the agency had resolved her immigration status?

In response to Stewart’s ruling, the sheriffs of Deschutes, Multnomah, Washington, Clackamas and a number of other Oregon counties announced they no longer will honor ICE detainer requests. This will harm our state. Local law enforcement agencies, notes attorney Charles Smith, are “in a very advantageous first-line-of-defense position to help enforce the nation’s immigration laws on a day-to-day basis” and can provide ICE agents a valuable “force multiplier.” If Oregon’s police and sheriffs stop providing ICE their routine help, our state will become more inviting to illegal immigrants than it already is.

But Stewart’s ruling is damaging for an even broader reason.

“The social contract,” writes Mark Levin, a former chief of staff to a U.S. attorney general, “is a compact between and among Americans, not Americans and the world’s citizens.” And the Fourteenth Amendment and its “equal protection of the laws” clause, ratified in 1868 to assure citizenship to freed slaves, never was intended to apply to foreigners who intentionally violate our immigration laws.

Which means, among other things, this: Foreign nationals in our country are here at our sufferance. But when a judge cites the Constitution to defend those of them who are here illegally, he or she can create a de facto right for them to stay — which can encourage others to come here illegally as well. This subverts the rule of law upon which Americans’ sovereignty depends.

Stewart should post on her courthouse wall the legendary dictum of Robert Jackson, the late U.S. Supreme Court justice and prosecutor of Nazis: “If the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.” For absent a stable society undergirded by the rule of law — the kind of society that is weakened by judges who fetishize the “rights” of illegal immigrants — the grand experiment that is the United States of America will come, at last, to an ignominious end.