Faculty Blog, Haynes

It’s Time to Pay Attention

For the past two years, our government has been steadily eroding the rule of law, chilling speech, riding rough shod over state’s rights, engaging in retaliatory activity against activists, and violating the constitution.  You may not have paid attention, because much of this activity has been centered in the field of immigration law.  If you thought that as a consequence, these moves do not impact you, however, you’d be very wrong.

In the past few months alone, the Trump administration has encouraged vigilantism; ordered the detention and surveillance of US citizen lawyers, journalists and activists; engaged in daily fear-mongering designed to push the electorate further right; and allowed its immigration agency to ride rough shod over the constitution by assaulting US citizen attorneys, threatening US citizen lawyers, activists and judges with obstruction of justice charges for upholding the law, and being encouraged by the administration to do so.

US Attorneys, operating under the Department of Justice, have brought charges against a state judge who followed the law by refusing to “turn over” a man sought by a plain clothes ICE agent who had no judicial warrant.  In an unprecedented move, state level prosecutors, defense attorneys and other human rights lawyers have filed suit against ICE for the practice of loitering in state courtrooms.  In the words of the attorneys who filed suit:

“ICE’s using state courthouses as a forum to conduct their enforcement work has struck fear in many of our most vulnerable, keeping them from accessing our courts. That is not justice.  It does not make our communities safer….Our criminal justice system can only function properly when people feel safe coming to court. When victims, witnesses, and defendants fear that entering a courthouse could place them at risk of immigration consequences, it prevents us as prosecutors from securing justice for the people we serve….Initiating a federal civil deportation prior to a criminal defendant being held accountable for the harm they caused in Suffolk County does nothing to serve the interest of justice or public safety. Instead, it creates an environment of fear and mistrust, and harms our entire community.”

No community is safe when people are afraid to report crime for fear of being picked up by ICE, or bringing family members to the attention of ICE. It has long been the policy of state law enforcement to encourage all members of the community to come forward to seek police assistance and report crime.  When ICE is stalking state courthouses, a policy explicitly designed by the Trump administration to punish so-called “sanctuary jurisdictions,  we all lose: people don’t report crime, they don’t seek restraining orders against their abusers, they don’t agree to be witnesses in criminal proceedings.  If they are detained by ICE before even being criminally charged, the criminal justice system is undermined and crime goes unpunished.  Undermining the rule of law is a lose-lose proposition for America.

Trump has allowed his administration to lie, to violate the constitution and to engage in deceptive practices.   In 2018, ICE agents sent a fake summons to an attorney, demanding that he turn over his “source” for information they insisted was “leaked.”  Throughout 2018 and 2019, CBP detained, defamed and harassed immigration lawyers.   These actions are designed to have a chilling effect on legal representation and on challenges to unconstitutional and unlawful government activity.  Our own government is abusing us in order to cement the normalcy of their own abuse of power.

This daily assault on the rule of law is purposeful.  By eroding the stability of our systems of government, they erode our confidence in these systems of power, and in any remaining checks to this unfettered administrative power that Trump and his ilk have promoted.    Once our confidence in our own system of government is shot, there will be no reliable check on the administration’s plan to use the enhanced authority the executive seeks by establishing that a “national emergency” exists.  Under the constitution, the national emergency must be bona fide and the measures undertaken compellingly tied to problem identified.  But if no other state or federal agencies are left with the authority or integrity to make this careful determination, then the executive branch can plow forward with its nativist agenda – increasing the base, keeping foreigners out, and punishing their supporters.

If you thought that these actions do not impact you, think again.  The abuse of power may be currently focused on immigration, but once the unfettered authority of administrative agencies like DHS becomes the norm, we all stand to lose.

Professor Dina Haynes teaches Constitutional Law, Immigration Law, Refugee and Asylum Law, and the Law Addressing Human Trafficking. She serves as the director of the New England Law Boston’s Immigration Law concentration.