Inventing Deportation Arrests

Lindsay Nash* June, 2023

At the dawn of the federal deportation system, the nation’s top immigration official proclaimed the power to authorize deportation arrests “an extraordinary one” to vest in administrative officers. He reassured the nation that this immense power—then wielded by a cabinet secretary, the only executive officer empowered to authorize these arrests—was exercised with “great care and deliberation.” A century later, this extraordinary power is legally trivial and systemically exercised by low-level enforcement officers alone. Consequently, thousands of these officers—the police and jailors of the immigration system— now have the power to solely determine whether deportation arrests are justified and, therefore, whether to subject over a hundred thousand people annually to the extended detention and bare process of our modern deportation system.

This deportation arrest regime—still anomalous in our law enforcement system— has been justified by the notion that immigration enforcement has always been different when it comes to arrest constraints and that the validity of the modern deportation arrest system is evidenced through its history. This Article investigates and ultimately challenges those justifications. It focuses on the advent of administrative arrest authority in the federal immigration scheme and explores how the once “extraordinary” and confined power to authorize deportation arrests became legally trivial and diffuse. It not only provides the first account of the invention and development of federal deportation arrest authority from its inception to the modern day, but also one that differs from and complicates the conventional account in critical ways. Specifically, it reveals an early system of deportation arrest procedures that, even at a time of virulent hostility toward immigrants and overtly racist immigration regulation, was designed to impose significantly greater checks on enforcement officers’ arrest authority and more robust independent review than does the modern immigration scheme. This Article also describes why that eventually changed, providing important insight on why we are where we are today.

Ultimately, this Article contests the conventional narrative that the modern deportation arrest regime is justified by its past and casts doubt on the near-unanimous case law that has relied on it. In so doing, it gives courts a reason to reconsider the constitutional validity of this scheme and provides historical support for calls to fundamentally transform the deportation arrest system.

Introduction

A century later, this extraordinary power is legally trivial and diffuse, systemically exercised by low-level enforcement officers alone.³ As a result, thousands of these officers—the police and jailors of the immigration system—have the power to solely determine whether deportation arrests are justified, and therefore, whether to subject over a hundred thousand people annually to the extended detention and the bare process of our modern deportation system.⁴

In some sense, the administrative power to authorize deportation arrests has remained “extraordinary,” an anomaly in even our now-vast enforcement state. That is because in most other contexts, arresting officers remain constrained by a neutral-and-detached-review rule.⁵ The rule requires them to either obtain a warrant pre-arrest by demonstrating probable cause to a judicial officer, or, in circumstances where an ex ante warrant is not required, promptly seek a judicial determination of probable cause post-arrest.⁶ To be sure, “judicial” in this context does not always refer to a judge in the technical sense and its boundaries remain undefined,⁷ but it has long been clear that these “judicial” officers deciding whether an arrest would be (or was) valid must possess two critical characteristics: neutrality and detachment from the prosecution.⁸ And while the application of this rule can be complicated,⁹ the animating premise is not: because enforcement officers “lack sufficient objectivity” to determine whether there is adequate cause to justify deprivations of individual liberty, neutral and detached adjudicators must intercede.¹⁰

But in the civil immigration arrest context, low-level enforcement officers alone make these calls. No magistrate—not even a neutral administrative officer—deliberates over the permissibility of the arrest beforehand.¹¹ No neutral officer evaluates probable cause after the fact.¹² Instead, enforcement officers—typically low-level enforcement agents—occupy the role that judicial officers play elsewhere.¹³ These officers either sign off on the validity of arrests beforehand by signing an administrative form labeled “warrant”¹⁴ or make the arrest without any review of the validity of the arrest, even after it has taken place.¹⁵ And while the neutral-and-detached-review rule governing arrests in nearly every other context seeks to prevent reliance on the potentially biased assessment of officers involved in the very arrest under review,¹⁶ immigration enforcement diverges there too: not only are probable cause determinations made by enforcement officers within the prosecuting agency, they may be made by officers “intimately involved” in the investigation or even the arrest itself.¹⁷ In other words, immigration enforcement officers alone authorize their colleagues or even themselves to arrest and detain people for civil immigration prosecutions.¹⁸

The consequences of this arrest regime are as troubling as they are predictable. Freeing arresting officers from any obligation to justify the arrest to a detached arbiter has, unsurprisingly, played an important role in allowing race-based policing to persist.¹⁹ This arrest scheme has also allowed ill-investigated,²⁰ contrary-to-statute,²¹ and retaliatory arrests,²² and led to countless erroneous arrests of U.S. citizens.²³ This—and the fact that so many people are not entitled to release post-arrest²⁴—has resulted in an incalculable number of days of unlawful and unnecessary detention, as even nondeportable people who are arrested may remain detained for weeks or months before their removal proceedings commence²⁵ and sometimes years before their removability is ultimately determined.²⁶ It has also resulted in unjust deportations, as even arrests that violate the statute or Constitution often do not result in the exclusion of evidence or termination of removal proceedings.²⁷

Although deportation arrest practices conflict with otherwise foundational arrest constraints, they have long been justified by the notion that, historically, deportation arrest authority has been placed in executive hands.²⁸ This narrative did not originate in 1960, but it assumed constitutional import then, when the Supreme Court blessed it in dicta in Abel v. United States.²⁹ There, the Court considered a Fourth Amendment challenge based on the fact that the petitioner’s deportation arrest was executed pursuant to a warrant issued by an administrative officer.³⁰ Despite ultimately declining to decide whether the Constitution required that a judicial—rather than executive—officer issue warrants in the deportation arrest context,³¹ the Court devoted five pages of the opinion to describing what it saw as the “long-sanctioned” use and “uncontested historical legitimacy” of purely executive probable cause determinations for deportation arrests.³² And, largely on this basis, the Court all but affirmed the “constitutional validity” of the arrest procedure used in Mr. Abel’s case.³³

Based on Abel’s “forceful” account of this history³⁴ and the perceived historical sanction for deportation arrests authorized only by executive officers, the government—with nearly unbroken success—has defended its modern arrest practices in litigation.³⁵ Courts have long rejected challenges to these arrests based on the purportedly “overwhelming historical legislative recognition of the propriety of administrative arrest for deportable aliens,”³⁶ and the assumption that the “historical development of immigration proceedings” shows the longstanding belief that “administrative officers and not neutral magistrates [may] make the probable cause determinations” for deportation arrests.³⁷ The government has also used this narrative to deflect public criticism, arguing that its current arrest practices are lawful because “[t]he Fourth Amendment has long permitted civil immigration arrests and detention, regardless of the fact that probable cause determination for such violations are made by Executive Branch officials rather than a magistrate.”³⁸

But this account omits aspects of deportation arrests’ history that are critical for evaluating the constitutional validity of the deportation arrest scheme today. I argued in a prior article—Deportation Arrest Warrants—that Abel’s description of the deportation arrest system at the time of our nation’s founding was flawed because the majority misunderstood the only federal law it analyzed and missed states’ removal laws, which were the most prevalent removal laws in the framing era.³⁹ This Article turns its focus to the first federal deportation arrest regime, which emerged a century later. It argues that the conventional account ignores key—long seen as crucial—distinctions between the officers conducting investigations and arrests, and those adjudicating whether there was probable cause for the arrest. Specifically, Abel failed to distinguish, in the historical evidence on which it relied, between the roles of the executive officers who were permitted to authorize deportation arrests and those who were actively involved in investigation and prosecution.⁴⁰ More recent decisions have compounded this error by ignoring the fact that immigration enforcement practices have changed in important ways since Abel was decided, including by devolving the power to authorize arrests onto lower- and lower-level enforcement officers.⁴¹

Despite these distinctions and the weight that the perceived historical legitimacy of deportation arrest practices has carried in contemporary doctrine, this account of how the power to authorize federal deportation arrests developed and who could exercise it remains largely unexamined—and unchallenged as a result. Many scholars have written thoughtfully about flaws of the deportation arrest system based on modern theory and doctrine.⁴² And others have discussed specific aspects of arrest procedures and practices in work focused on other facets of the federal immigration system’s development.⁴³ Perhaps the most in-depth prior work has been done by historian S. Deborah Kang, who provides important insights on changes to immigration-related arrest practices and authority from 1925 through the 1940s in her powerful institutional history of early immigration enforcement in the nation’s southern borderlands.⁴⁴ Yet despite the magnitude of these prior contributions, the larger, longer story of the invention and development of the deportation arrest regime and its connection to the justification for our modern scheme remains untold.

This Article takes on that project. Drawing on a range of sources, it explores the question of how this once “extraordinary” and confined power to authorize deportation arrests became legally trivial and largely unconstrained.⁴⁵ It not only provides the first account of the invention and development of federal deportation arrest authority from its inception to the modern day, but also one that differs from and complicates the conception of what was accepted in terms of executive probable cause determinations for deportation arrests. Specifically, it reveals an early system of federal deportation arrest procedures that, even at a time of virulent hostility toward immigrants and overtly racist immigration regulation, was designed to impose significantly greater checks on enforcement officers’ arrest authority and provide more robust independent review than does the immigration scheme today. And it shows that, while substantial deportation arrest authority was placed in executive hands in the early federal system, the executive branch was not authorized to implement this authority in any way it saw fit or, as it does today, place this “extraordinary” power in low-level enforcement officers’ hands. This Article also explains why that eventually changed and uses new information obtained through Freedom of Information Act litigation to provide fresh insight into who actually authorizes these arrests today. Ultimately, this Article contests the conventional narrative that the modern deportation arrest regime is justified by its past and casts doubt on the near-unanimous case law that has relied on it. In so doing, it provides reason for courts to reconsider the constitutional validity of this scheme and historical support for calls to fundamentally transform the deportation arrest system.

This Article proceeds in five parts. Part I explains who authorizes arrests in our modern immigration enforcement regime and how this process has been justified. Part II begins the inquiry into the history, examining the adoption and implementation of the first federal laws authorizing deportation arrests, a system that, though administered largely within the executive branch, was structured to provide independent probable cause review pre-arrest and reserve the weighty decision of whether an arrest was justified to the highest echelons of government power. Part III examines how nativist legislation transformed the federal immigration bureau’s work and created administrability challenges for this regime. It also shows how Congress and the agency long resisted calls to “subdelegate” to lower-level officers the power to authorize deportation arrests in our nation’s interior.⁴⁶ Part IV describes how—amid a world war and approximately sixty years after the advent of federal deportation arrests—the longstanding deportation arrest procedures ultimately began to change, and it traces the subsequent subdelegation of the power to authorize these arrests. Using this history and previously unreleased information about contemporary arrest practices, this Part sheds new light on how the government currently wields this extraordinary power and shows that, in some respects, our modern deportation arrest scheme is not part of longstanding practice at all, but rather is new—and novel—in significant ways. Part V considers implications, explaining that some of the key practical constraints that shaped the development of our modern scheme are no longer present, but the risks of vesting such extraordinary authority in low-level enforcement officers remain as strong today. It argues that, more fully understood, the history of federal deportation arrests seriously undermines existing case law and justifies not the system in place now, but a dramatically different one in which structurally distinct, detached, and neutral officers determine probable cause for purposes of arrest and detention.

I. Modern Deportation Arrest Regime

Deportation arrests are typically executed in the shadows, obscured and often unexamined as a result.⁴⁷ Consequently, the unique procedures associated with these arrests and the way they differ from other arrest processes are generally ill-understood by the public, fellow law enforcement, and even those taken into custody under this scheme. But, before turning to deportation arrests’ history, it is necessary to appreciate how they occur and the ways in which this regime stands virtually alone in law enforcement today. This Part explains who, in our modern system, judges the validity of deportation arrests and how these arrest processes have been justified.

A. Who Judges the Validity of Deportation Arrests Today

In our modern immigration system, immigration enforcement authority is vested primarily in the Department of Homeland Security (“DHS”), a relatively new agency responsible for, among other things, the domestic enforcement of the nation’s immigration laws.⁴⁸ While its immigration enforcement responsibilities are expansive,⁴⁹ its removal function often takes center stage in policy debates, messaging, and public conceptions of the agency’s agenda.⁵⁰ Consistent with this, DHS employs the nation’s largest force of law enforcement officers,⁵¹ and ICE—the agency’s interior enforcement subcomponent—alone employs the fourth-largest force of officers with arrest and firearm authority.⁵² Thus, DHS—and even ICE on its own—plays a major role in arrests and policing today.

DHS’s authority to conduct immigration enforcement is provided by statute. This authority is set forth in the Immigration and Nationality Act (“INA”)—the statutory backbone of the U.S. immigration system—and implemented through agency-issued regulations.⁵³ This power is also understood to be augmented—at times—by the executive’s “inherent” or “plenary” authority “to implement sovereign prerogatives.”⁵⁴

At present, deportation arrests may be effectuated in one of two ways. The first is under the INA’s provision for warrant-based arrests, which provides that, as a default, deportation arrests should be conducted based on a “warrant.”⁵⁵ However, this statutorily prescribed warrant is not a warrant in the ordinary sense, but rather an administrative instrument issued by officers in the enforcement agency within the executive branch.⁵⁶ The INA delegates the authority to issue this instrument to the DHS secretary,⁵⁷ who has subdelegated her authority to over fifty types of immigration enforcement officers, including those who investigate cases or even make arrests themselves.⁵⁸ The secretary has also claimed the power to subdelegate warrant-issuing authority to virtually any federal employee she chooses, and to do so informally and without further formal rulemaking.⁵⁹ Consequently, a wide range of DHS enforcement agents (and perhaps others) are now empowered to sign administrative forms labeled “warrant[s] of arrest”⁶⁰ and thereby authorize deportation arrests—even of people they identify, investigate, and apprehend themselves.⁶¹ In other words, by signing a form labeled “warrant,” these enforcement officers may authorize their fellow officers or themselves to make deportation arrests.⁶²

But even that is only a default. The second mechanism for deportation arrests permits DHS officers to make an arrest without obtaining an administrative warrant beforehand if the officer has “reason to believe”—a standard akin to probable cause⁶³—that the suspected noncitizen “in [the] presence or view” of the immigration officer, “is entering or attempting to enter the United States” unlawfully or “is likely to escape before a warrant can be obtained for his arrest.”⁶⁴ When an officer makes such an arrest, that officer must theoretically seek a second opinion of sorts from another DHS officer after the arrest.⁶⁵ But that second officer—also charged with enforcement—need not be neutral, detached, or even independent of the investigation itself. Nor is the second officer required to review the propriety of the arrest; she must merely “examine” the arrested individual to determine whether she believes that the person violated U.S. immigration law.⁶⁶ And even this second-officer review is not necessarily required, as arresting officers may forgo it “[i]f no other qualified officer is readily available and the taking of the alien before another officer would entail unnecessary delay.”⁶⁷ Thus, in the context of warrantless deportation arrests, the arresting officer may be the only person who ever considers whether there was probable cause for the arrest.

An arrested individual may be held in detention for weeks, months, or years.⁶⁸ They will at some point, typically weeks or even months later, be brought before an immigration judge—an administrative adjudicator employed by the Department of Justice (“DOJ”)—to respond to the charges against them and litigate the merits of their removal case.⁶⁹ But at no point are they entitled to any sort of automatic review of the basis for their arrest, whether promptly after they are taken into custody or otherwise.⁷⁰ And even if they manage to raise the issue, it is extremely unlikely to help them avoid detention or removal, as deportation arrests that violate the regulations, the statute, or even the Fourth Amendment often do not entitle the litigant to release, the exclusion of evidence obtained in the arrest, or the termination of removal proceedings.⁷¹

Of course, in the criminal context, low-level enforcement officers make the prima facie determination of probable cause all the time.⁷² Police officers have broad authority to make warrantless arrests for suspected crimes,⁷³ meaning they are empowered to arrest on the basis of their own, perhaps biased assessment of probable cause. But even putting aside the doctrinal and practical distinctions between the civil and criminal contexts in which these arrests occur,⁷⁴ police officers’ warrantless arrests differ in a critical way: their initial assessments of probable cause are subject to mandatory judicial review promptly after the arrest; immigration enforcement officers’ are not.⁷⁵ Put differently, unlike immigration officers effecting deportation arrests, police executing criminal arrests are not generally permitted to subject people to extended detention unless a neutral and detached arbiter reviews and validates the arresting officer’s finding of probable cause.

This is not to suggest that the probable cause review procedure in these other contexts—mainly the criminal legal system—lives up to the checking function intended. Scholars have shown that the rigor of initial probable cause review has been limited, the timeline for the initial appearance before a judge has been lengthened, and the deferential probable cause review norm has contributed to overpolicing and baseless arrests.⁷⁶ But there are good reasons to believe that the problems in the criminal context would not transfer to the immigration context: the potential for a more rigorous assessment when implementing a new procedure in the civil immigration context; the highly technical analyses often required to determine whether there is a “fair probability” that someone is removable; and the fact that the criminalization of such a wide swath of conduct (which insulates so many criminal arrests)⁷⁷ would not function similarly in the immigration context. And although probable cause may be easy to establish in some removal cases,⁷⁸ a mandatory judicial checkpoint between the arresting officer’s assessment and extended detention could play a powerful role in reducing the nature and volume of dragnet enforcement.

The problems that flow from a regime that exempts virtually all arrest decisions from review are legion. This system permits arrests without adequate cause,⁷⁹ in violation of statutes and rules,⁸⁰ and based on impermissible discrimination, animus, and racial stereotypes.⁸¹ Such a regime has also allowed ICE to rely heavily on data from error-prone databases that contain outdated immigration status information for its probable cause determinations.⁸² Indeed, ICE has previously relied on evidence of foreign birth and the absence of additional information in these notoriously incomplete databases in making probable cause determinations, which has resulted in ICE arresting people who—as the agency was well-positioned to ascertain—were actually U.S. citizens.⁸³ These phenomena permeate the deportation arrest system and, in many ways, reflect precisely the concerns about governmental overreach and discretion that animated the neutral-and-detached-review rule in other contexts.⁸⁴

Yet, despite these well-documented problems, this regime remains; the next Section explains why.

B. Justifications

It is not that the lack of a neutral arbiter within the deportation arrest regime has never been questioned. Particularly as the system has increasingly relied on force-multiplying partnerships with state and local law enforcement,⁸⁵ litigators have raised new challenges to this arrest scheme, generating a host of lawsuits throughout the nation.⁸⁶ But these challenges have almost uniformly failed, largely due to courts’ reliance on the conventional view that these procedures can claim historical legitimacy and longstanding public sanction.⁸⁷

As described at the outset of this Article, the notion that these arrests are validated by their history assumed important weight in the mid-twentieth century when the Supreme Court enshrined it in doctrine in Abel v. United States.⁸⁸ In its lengthy elaboration of the longstanding historical acceptance of probable cause determinations made by executive officers, the Abel Court’s strong dictum seemed to sanction a deportation arrest scheme that permitted enforcement officers to serve as the sole arbiters of probable cause for these arrests.⁸⁹

Sixty years and countless regulatory changes to this arrest scheme later, this account of history has remained enormously consequential, justifying and insulating the deportation arrest regime today. Courts continue to reject challenges to both individual deportation arrests and the system writ large based on this version of history.⁹⁰ And, due to courts unquestioningly accepting and reflexively reinscribing this account into case law, the perception of historical legitimacy has only gained steam.

But Abel and its progeny have made reckless jurisprudential leaps in this analysis of history by treating a wide range of distinct types of executive probable cause determinations as equivalents regardless of the role or position of the officer signing off on the arrest. Abel, for example, involved a deportation arrest authorized by an officer charged with enforcement, but the Abel majority found that arrest valid by relying almost entirely on laws that, when enacted, permitted arrest authorization only to be issued by a structurally distinct officer at the highest echelons of executive power: in one instance, the president and in others, a cabinet secretary.⁹¹ And this problem of eliding the distinctions in executive officers has only worsened in the decades that followed. As regulatory changes have devolved the power to authorize and validate these arrests lower and lower within the agency’s structure, virtually every court to consider the issue since has made this same mistake, relying on the fact that our nation has accepted some types of extremely high-level executive officers authorizing arrests to uphold the validity of arrests made only on the say-so of low-level enforcement agents, including the police and jailors of the immigration system.⁹²

The first real fissure in this approach came in Gonzalez v. U.S. ICE, a recent Ninth Circuit decision.⁹³ There, the Ninth Circuit reversed a district court decision that, based on the history presented in Abel, had rejected a constitutional challenge to the modern warrantless deportation arrest system. The Ninth Circuit agreed with the cross-appellants that, under modern arrest doctrine, the neutral-and-detached-review rule applied in the deportation context.⁹⁴ It harmonized its conclusion with Abel, reasoning that, despite what Abel may have concluded about probable cause determinations being made by some types of executive officers, the specific role of the executive officer who determines probable cause is key: the officer authorizing the arrest—even if within the executive branch—must be neutral and detached.⁹⁵ However, the Ninth Circuit left open critical questions, such as which types of executive officers should be permitted to authorize arrests, whether the existence of an enforcement-officer-issued warrant satisfies this requirement, and how historical practice fits into this analysis.⁹⁶

The perceived historical pedigree of executive-authorized deportation arrests has mattered not only because of the import of historical arrest practices in constitutional arrest doctrine, but also for the application of plenary power. The plenary power doctrine refers to the principle that, in some areas, Congress (and at times the executive) exercise virtually unfettered authority, meaning that neither the courts nor substantive constitutional constraints may intrude.⁹⁷ The expansive application of this doctrine has been formative in the development of immigration law; it has played a particularly powerful role in allowing immigration enforcement to become exceptional by shielding it from constitutional scrutiny and preventing courts from enforcing the norms that constrain other regimes.⁹⁸ And history plays an important role here too: it helps determine the boundaries of this doctrine, as courts have often looked to historical practice to understand the scope and application of plenary power in a particular domain.⁹⁹ Thus, the belief—correct or not—that these arrests are historically sanctioned has had a self-reinforcing effect, persuading courts that deference is warranted and limiting the robustness of judicial review even when presented with colorable constitutional claims.¹⁰⁰

With this background in mind, the remainder of this Article examines the history of the federal deportation arrest system that purportedly justifies this regime. It explores how this anomalous system developed; considers whether, as the conventional view suggests, this history shows that our nation has always adopted and accepted the type of deportation arrests that undergird our removal system today; and lays the groundwork for this Article’s ultimate argument that a fuller understanding of this history supports calls for fundamental change.

II. Inventing Federal Deportation Arrests

Although federal immigration regulation now seems ever-present, the federal immigration regime was not created until the late 1800s—almost a century after the nation’s founding.¹⁰¹ The federal deportation system came even later, and arrest for purposes of federal deportation proceedings emerged later still. This Part explores the creation of that regime, focusing on the construction of the federal government’s early deportation system and the invention and institution of deportation arrests within that scheme. It examines federal deportation arrest practices as they emerged and developed in parallel but decidedly separate tracks—in the context of expulsion under the Chinese exclusion laws and under the early general immigration laws—and then became effectively unified under the early administrative deportation arrest regulations. Ultimately, it shows that, even though the early administrative enforcement structure coalesced at a time of virulent hostility toward immigrants and overtly racist immigration regulation, it relied upon a system of arrest procedures that was designed to impose significantly greater checks on enforcement officers’ arrest authority and more robust independent review than does the deportation arrest regime today.

A. Authorizing Deportation Arrests

Though Congress had adopted laws barring entry to certain immigrants earlier,¹⁰² it did not create a deportation regime until 1882.¹⁰³ With the adoption of the Chinese Exclusion Act, Congress ushered in an era of overtly anti-Asian deportation, enacting a law that provided not only for the exclusion of certain Chinese immigrants seeking entry to the United States, but deportation as well.¹⁰⁴ Substantively, the Act banned the entry of Chinese laborers into the United States for ten years and made it unlawful for Chinese laborers who had entered in violation of the law to remain in the Unites States.¹⁰⁵ The fact that the Act restricted entry was not especially unusual as Congress had adopted such legislation in the past,¹⁰⁶ but this law went further in authorizing deportation (i.e., removal from the nation’s interior) of “any Chinese person found unlawfully within the United States” and setting out the procedure for the nation’s first deportation proceedings.¹⁰⁷

In terms of process, the Chinese Exclusion Act hewed to the longstanding distinction in rights owed to individuals within our community versus those seeking entry.¹⁰⁸ It provided that while certain Chinese immigrants seeking admission could be found inadmissible based only on the judgment of an administrative customs officer, Chinese citizens believed to be unlawfully present within the United States were entitled to a hearing before “some justice, judge, or commissioner of a court of the United States.”¹⁰⁹ Only if that judicial officer concluded that the person was “not lawfully entitled to be or remain in the United States,” could that person be ordered deported to the “country from whence he came.”¹¹⁰ But this law provided no authority to arrest people for deportation proceedings.

It was not until September 1888—a century after the nation’s founding—that Congress adopted the first federal law permitting arrests for deportation proceedings.¹¹¹ The newly added provision explicitly spelled out procedures for arresting Chinese individuals believed to be deportable in the interior of the country, providing for their arrest based on “a warrant issued upon a complaint, under oath, filed by any party on behalf of the United States by any justice, judge, or commissioner of a United States court, or before any United States court.”¹¹² Thus, the earliest authority for federal deportation arrests did not permit executive officers to authorize arrests at all, but rather required judicial warrants.

One month later, Congress adopted the first generally applicable deportation law that the federal government would actually put into practice.¹¹³ This law, known as the “Alien Contract Labor Law,” had been adopted in 1885 as a simple ban on aiding or encouraging the migration of noncitizen laborers.¹¹⁴ It prohibited any company or individual from bringing noncitizen laborers into the United States to work under contract,¹¹⁵ and, two years later, was amended to allow the secretary of the Treasury Department to authorize agency employees to formally exclude noncitizens who sought entry in violation of the ban.¹¹⁶ In October 1888, Congress extended the law’s enforcement provisions into the interior, converting it into a deportation law by authorizing the removal of “an immigrant [who] has been allowed to land contrary to the prohibition of [the Alien Contract Labor Law]” for a year following their landing or entry.¹¹⁷

Through this 1888 amendment—again, a century into the nation’s existence—Congress created the first general federal authority to arrest for purposes of deportation proceedings. Specifically, it authorized the secretary of the Treasury—then charged with enforcement of federal immigration laws—to “cause” the arrest of noncitizens who were deportable under the Act’s interior enforcement provision.¹¹⁸ But while the law was silent about how the secretary was to exercise this power, the agency interpreted it to mean that the secretary—and only the secretary—could authorize arrests, and he could do so only by issuing an arrest warrant.¹¹⁹

Yet, the Alien Contract Labor Law’s deportation provision was extremely narrow, and Congress still had not enacted a law that implemented wide-ranging general immigration restrictions. It did so in 1891, adopting a generally applicable immigration law that imposed a far wider range of restrictions on entry into the United States and provided for interior enforcement as well.¹²⁰ It expanded the list of characteristics that make a person inadmissible and provided for the deportation of anyone found in the United States within a year after entering in violation of the 1891 law.¹²¹ But even as the 1891 law made explicit provisions for detaining noncitizens subject to exclusion,¹²² it said nothing about the arrest of noncitizens in the interior of the country for prosecution under its deportation provisions.¹²³ That is to say, while the law clearly provided for the detention of noncitizens in exclusion proceedings, it did not mention arrest or detention for individuals facing deportation. Accordingly, although the agency would later take a different position, it was understood in the years following the adoption of the 1891 law that it conferred no power to arrest or detain noncitizens for deportation proceedings once they were within the United States.¹²⁴

This understanding—and the agency’s attempt to balance the enforcement challenges posed by the dearth of this authority with an awareness that the power should be limited—became evident in the critical system-building years that followed. The 1891 Act not only imposed new restrictions on immigration, but also laid the groundwork for the agency to formalize immigration procedures and create a more robust administrative structure to implement it.¹²⁵ Among other things, it created the Office of the Superintendent of Immigration, a dedicated subcomponent of the Treasury Department, and empowered the superintendent to supervise immigration inspectors—the officers enforcing the general immigration laws on the ground.¹²⁶ A few years later, Congress converted the Office of Immigration to bureau status, designating it as the Bureau of Immigration and its head official as the commissioner-general of immigration.¹²⁷ And the agency, citing increased responsibilities and authority, began growing its workforce and developing systems for administering and enforcing the new law.¹²⁸

Shortly thereafter, the Bureau of Immigration began making recommendations to Congress to improve the administration of the immigration system and increase its enforcement capabilities. Creating arrest authority to enforce the 1891 law’s deportation provisions was high among its early priorities.¹²⁹ In particular, the bureau requested legislation that would increase its interior arrest authority in two ways. First, it requested that Congress grant the secretary power to issue arrest warrants for purposes of enforcing the 1891 law against people who had already entered the United States.¹³⁰ Second, the bureau sought to expand the number of executive officers who could provide agency sign-off for arrests from one (the secretary) to two.¹³¹ To that end, it requested legislation providing the commissioner-general a “right, with limitations, to apply to the United States courts for the arrest of immigrants” within the United States.¹³² In other words, the bureau sought legislative authorization to permit the commissioner-general—but no one else—to seek arrest warrants from a judge, but did not request that the commissioner-general be vested with power coextensive with the secretary’s that would have allowed him to issue the warrants himself.

The bureau’s arrest authority requests both reflected its desire for increased authority and hinted at its basic assumptions about the limits of deportation arrest authority at that time. For example, they indicated that the bureau presumed that any additional administrative warrant-issuing authority would be like that conferred by the 1888 Act—permitting only an arrest warrant issued by the secretary himself. In addition, the explicitly limited nature of the requested legislation granting the commissioner-general authority to even seek arrest authorization from a court underscores the degree to which deportation arrest authority—in contrast to many of the agency’s other activities—was understood to be specially constrained and reserved for judicial and quasi-judicial, structurally distinct actors. Taken together, these requests suggest that the enforcement agency itself found the notion of inferior officers—even ones as high-ranking as the commissioner-general—authorizing arrests to be undesirable or problematic, intimating concerns similar to those expressed by agency officials in the decades that followed.¹³³ Despite these entreaties, and even as it adopted other immigration-related legislation,¹³⁴ Congress did not act on these requests for another decade.

By 1899, the agency had reversed course and adopted a different view of the 1891 Act. It developed the position that some ambiguous language in the 1891 Act, in combination with the 1888 Act, permitted the secretary to issue warrants for the arrest of noncitizens subject to deportation under the 1891 law.¹³⁵ The question of whether the 1891 Act in fact conferred such authority was still apparently one of first impression in 1899—and one on which courts vehemently disagreed given the magnitude of the power at issue and the statute’s failure to confer deportation arrest power in any “explicit terms.”¹³⁶ But ultimately, in 1903, the Supreme Court sided with the government, finding that Congress must have intended to essentially bootstrap the arrest power described in the 1888 Act into the 1891 law; it simply could not believe that Congress would have intended to allow noncitizens who were deportable at the time of entry to be insulated from arrest and therefore “entirely beyond the control or authority of the executive officers of the Government.”¹³⁷ Ironically, however, the Supreme Court’s decision affirming the secretary’s warrant-issuing authority under the 1891 Act came a month after Congress finally passed legislation that conferred interior deportation arrest authority in clear terms.

A month before the Supreme Court’s decision, Congress enacted a new general immigration law that incorporated a number of the bureau’s requests over the prior decade.¹³⁸ Substantively, the law dramatically expanded the list of people subject to exclusion and lengthened what was effectively a statute of limitations for deportation for certain newly arrived immigrants.¹³⁹ In terms of process, Congress finally granted the bureau’s request for legislation conferring authority to make arrests to enforce the general deportation laws, but only in part. With respect to the bureau’s request to expand the secretary’s warrant-issuing power, Congress acquiesced by adding language virtually identical to the arrest provision of the 1888 Act; it authorized the Secretary to “cause such alien . . . to be taken into custody and returned to the country whence he came.”¹⁴⁰ Congress clarified this grant of authority a few years later, amending it to specify how these arrests were to be executed: upon “warrant of the Secretary of Commerce and Labor” (as the bureau had, by then, been moved from Treasury into the newly created Department of Commerce and Labor).¹⁴¹ But Congress declined the bureau’s request to grant the commissioner-general even limited authority to seek warrants from courts and did not vest him or any other administrative officers with the power to authorize arrests themselves.¹⁴²

Though, as Part III describes, Congress continued to expand the nation’s deportation laws in the years that followed, it retained this scheme for the next four decades.¹⁴³ The next Section describes how the agency created administrative processes and standards to implement its new arrest authority, and, in so doing, designed the United States’ first—and long-lasting—general deportation arrest scheme.

B. Designing the Deportation Arrest System

Once Congress granted the secretary power to authorize deportation arrests for general interior enforcement, the agency began working to implement and proceduralize the use of this extraordinary power. The bureau began this process by issuing a formal arrest process directive—Department Circular No. 8—that dictated the procedure through which the agency operationalized this authority and, shortly thereafter, became an enduring part of the bureau’s formal regulations.¹⁴⁴

Circular 8 set forth a detailed and comparatively robust process that officers were to follow in applying for deportation arrest warrants from the secretary. It provided that applications for these warrants should be in writing, “must” contain “[a] full statement of the facts, supported if practicable by affidavits, which show the presence in the United States of the alien, whose arrest and deportation is sought, to be in violation of law.”¹⁴⁵ It required officers to include documentary proof of the details of the noncitizen’s entry or explain why that proof could not be obtained.¹⁴⁶ And while it acknowledged that the circumstances of a particular case may require an expedited “request by wire,” it clarified that, even then, the request must contain the full statement of facts and an affirmation that the written application and proof had been forwarded to the secretary.¹⁴⁷

Circular 8 also detailed how the secretary should decide whether arrest was justified in each case. It provided that, if the application “conform[ed] with” the regulations, the Secretary would determine whether “it appear[ed] to [him] that the alien whose arrest and deportation is sought is in the United States unlawfully and that the time within which he can be deported has not expired” and, if so, issue a warrant of arrest.¹⁴⁸ This was understood—echoing the language of the Fourth Amendment—to mean that the secretary was responsible for determining whether the application was “back[ed] up . . . with proof of ‘probable cause.’”¹⁴⁹ Taken as a whole, Circular 8 required the immigration officer who sought to make an arrest to conduct a detailed investigation, articulate the factual and legal basis for the arrest, present specific facts and documentary evidence, and apply to the highest-level official in the entire agency—a member of the president’s cabinet who was not part of the bureau—who determined whether there was probable cause for the arrest.

By 1907, Circular 8 was formally incorporated into the bureau’s binding regulations,¹⁵⁰ cementing the agency’s interior arrest scheme that remained in effect until the 1940s. During that period, the bureau made minor changes to the process.¹⁵¹ It strengthened the evidentiary requirements in certain respects—for example, adding a provision emphasizing that the evidence submitted with the warrant application should be the “best that can be obtained” and specifying types of required proof¹⁵²—but it softened them in other aspects as well.¹⁵³ And the bureau made clear that it anticipated requiring officers to obtain additional evidence after they applied for an arrest warrant in some cases,¹⁵⁴ indicating that, even if an application was complete, approval would not be automatic. But the major elements remained the same,¹⁵⁵ and these rules established the original regulatory regime for the deportation arrest system—one that would serve as the standard for deportation arrests for approximately four decades.¹⁵⁶

One lingering question, however, is why the bureau designed this relatively rigorous system as it did. A partial explanation may be the absence of a presumption that, without explicit legislative authorization, such authority could be administratively subdelegated at that time.¹⁵⁷ Given that, the bureau understandably interpreted the statutory text to mean that Congress did not intend for this authority to be wielded by inferior officers¹⁵⁸ and presumably that the secretary should therefore play some meaningful role in this process. But because the statute said little else about how this authority was to be exercised and because there was little threat of rigorous judicial review in that era,¹⁵⁹ the agency remained relatively free to construct the warrant-issuing process unencumbered by statutory direction or judicial intervention.

Bureau guidance provides additional insight into the agency’s implementation and system design. It suggests that—even as the bureau embraced the anemic process afforded noncitizens in many aspects of the early immigration system—it viewed the deportation arrest decision as distinct, quasi-judicial, and subject to special constraints. For example, shortly after incorporating this arrest procedure into formal regulations, the commissioner-general explicitly recognized “the gravity” of the decision to authorize a deportation arrest.¹⁶⁰ And though ministerial bureau officers routinely made decisions as weighty as adjudicating the right of entry and exclusion,¹⁶¹ the commissioner-general noted that the power to authorize arrests within the nation’s interior was “an extraordinary one” to place in the hands of any administrative officer, and the exercise of this power in particular “require[d] great care and deliberation.”¹⁶² Some years later, the secretary similarly made it plain that he viewed this grant of authority as quasi-judicial and distinct from other decisionmaking authority vested in agency officers.¹⁶³ And at least some early agency guidance reflects this same thinking, reaffirming the important constitutional rights at stake and the enduring need to protect against the risk of “arbitrar[y]” apprehensions.¹⁶⁴ Indeed, an assistant secretary of labor during this same period echoed this sentiment, characterizing the power to authorize deportation arrests as an “extensive” one to vest in an administrative officer and worrying that it provided carte blanche to an “executive hand capable of grossly abusing lawful authority.”¹⁶⁵

Of course, then as now, arresting officers sometimes violated the rules designed to constrain them.¹⁶⁶ This happened perhaps most famously in the “Palmer Raids” of 1919–1920, in which the DOJ engineered the widespread arrests of suspected anarchists and communists for the purpose of deporting them from the United States.¹⁶⁷ The DOJ convinced the acting secretary of labor to issue arrest warrants for some of these individuals, but many more were arrested without warrants.¹⁶⁸ But, while the conventional account would suggest that these arrests would be broadly sanctioned, this widely publicized departure from the statute and rules drew intense criticism from prominent members of the legal establishment, members of government, and the subsequent acting secretary alike.¹⁶⁹ Thus while this was far from the only time immigration officers made deportation arrests before obtaining the required warrants and in violation of agency rules,¹⁷⁰ the reaction to this unusually public violation reflected significant disapproval. Moreover, the fact that arresting officers sometimes ignored the rules designed to constrain them says more about the lack of oversight or remedies than the design of the deportation arrest scheme itself.

C. The Geary Act

There was, however, a notable early deviation from the structure above: a warrantless arrest provision adopted through an amendment to the Chinese exclusion laws. Amid mounting concerns about difficulties enforcing the Chinese exclusion laws,¹⁷¹ Congress enacted a law as infamous now as it was controversial then: the Geary Act of 1892.¹⁷² This law not only temporally extended the Chinese exclusion laws then in effect, but also imposed new requirements, procedures, and harsh penalties applicable to Chinese citizens seeking admission to and within the United States.¹⁷³

Of particular note, Section 6 of the Act required Chinese laborers lawfully within the United States on the date of its adoption to register with the government and carry certificates proving their lawful residence, subjecting them to arrest and potentially deportation if found without such certificates.¹⁷⁴ Section 6 also inaugurated an arrest procedure that was wholly new in the federal deportation regime: it permitted deportation arrests without a judicial warrant, authorizing enforcement officers to execute warrantless arrests for Section 6 prosecutions.¹⁷⁵ At the same time, the Geary Act left in place the longstanding requirement of a judicial warrant for deportation arrests under the other provisions of the Chinese exclusion laws.¹⁷⁶ And in at least one important respect, Section 6 arrests still more closely resembled arrests in the modern criminal system than in the modern immigration context: people arrested for such prosecutions were presented to a neutral and detached judicial officer.¹⁷⁷ Still, this warrantless arrest provision represented a sharp—if narrow—departure from the otherwise consistent laws and administrative rules requiring judicial or high-level, quasi-judicial authorization pre-arrest.

But the Geary Act was hardly uncontested or broadly sanctioned.¹⁷⁸ Even within a nation that had accepted previous immigration measures directed at Chinese citizens, the Geary Act drew fire for its substantively and procedurally harsh provisions.¹⁷⁹ It engendered “mass resistance” from the Chinese community and criticism from commentators and legislators as well.¹⁸⁰ Indeed, it was believed, by “many in the legal community” and elsewhere, to violate the Constitution.¹⁸¹ Because of this broad opposition and at the request of the Chinese minister, a test case challenging Section 6 was expedited for review before the U.S. Supreme Court.¹⁸²

The test challenge reached the Supreme Court shortly thereafter, consolidated as the now-well-known Fong Yue Ting v. United States.¹⁸³ The petitioners briefly raised a Fourth Amendment challenge to the Act’s arrest provision (among a host of other claims).¹⁸⁴ However, they focused on arguing that mandating the deportation of Chinese individuals who had been lawfully residing within the United States was, for a variety of reasons, “beyond the power of Congress” and that Section 6—especially its provision that made deportability essentially hinge on the certification of a nonjudicial officer—deprived the alleged noncitizen of due process.¹⁸⁵ The case divided the Court, but the majority rejected these challenges, relying on the plenary power doctrine developed in the context of exclusion in affirming the government’s broad power to regulate immigration in the interior.¹⁸⁶

Section 6 thus survived, but implementation of its enforcement provisions remained stalled. ¹⁸⁷ For one thing, enforcement was practically difficult due to orchestrated “massive noncompliance” and a “severe shortage of funds.”¹⁸⁸ For another, enforcement would create considerable concerns for relations with China.¹⁸⁹ Given this and the anticipated legislative modification, Section 6 enforcement was put largely on hold.¹⁹⁰ This standstill did not last forever, but it did last long enough for Congress to adopt legislation extending the Act’s registration period and for China to order Chinese citizens to comply. ¹⁹¹

Yet, the bureau—by then also charged with enforcing the Chinese exclusion laws¹⁹²—soon found itself with new reasons for declining to invoke Section 6’s warrantless arrest provision. First, as the commissioner-general repeatedly explained, interior enforcement of the Chinese exclusion laws was difficult because the bureau continued to encounter widespread opposition by the public and even judges.¹⁹³ As a result, by 1905, the bureau had already developed a “general policy” of making arrests under the Chinese exclusion laws in the interior of the United States only in “flagrant cases”¹⁹⁴ and “as gradually and at as infrequent intervals as a proper enforcement of the [Chinese exclusion] law would permit.”¹⁹⁵

Second, by approximately 1906, the bureau had begun arresting and prosecuting Chinese citizens under the deportation-related provisions of the general immigration laws instead of Section 6 (or other Chinese exclusion law provisions).¹⁹⁶ It did so after concluding that Congress, in enacting the 1903 (and subsequently 1907) general immigration laws, granted the bureau authority to prosecute individuals covered by Chinese exclusion laws under the general immigration laws.¹⁹⁷ This shift was considered advantageous because prosecution under the general immigration laws limited the prodigious federal court litigation that occurred in many Chinese exclusion law cases and because providing judicial hearings for deportation proceedings (which offered alleged Chinese citizens certain legal advantages that administrative admission proceedings did not) was thought to incentivize surreptitious entry.¹⁹⁸ As a result of this change, arrests under the Chinese exclusion laws came to comprise a small fraction of immigration enforcement in the years that followed: by 1920, the bureau reported only thirty-one deportation arrests under any provision of the Chinese exclusion laws whereas it authorized 9,851 under the general immigration laws.¹⁹⁹

Moreover, bureau reports strongly suggest that, of the Chinese exclusion law prosecutions that were initiated, few actually involved warrantless arrests. For instance, in 1908–1919 (the only years for which this data was provided), all reported deportation arrests under the Chinese exclusion laws were made pursuant to judicial warrants—and not Section 6’s warrantless arrest provision.²⁰⁰ While this may seem counterintuitive, it makes some sense, both because the number of people chargeable under Section 6 dwindled as time went on²⁰¹ and because if prosecutors wanted to lodge other charges under the Chinese exclusion laws, arrests had to be made based on a judicial warrant.²⁰² Thus, although officers were empowered to make warrantless arrests for a particular subset of Chinese exclusion law cases, such arrests were relatively rare: instead, the agency made the vast majority of arrests under the general immigration laws and the procedure described above,²⁰³ and it appears that many—perhaps most—of the Section 6 cases it prosecuted were initiated through judicial-warrant-based arrests.²⁰⁴ Accordingly, given the relatively small portion of deportation arrests that involved Section 6’s warrantless provision, the processes for deportation arrests became largely unified as a matter of practice.

This is not to discount the repugnant and enduring impacts of the Chinese exclusion laws. Scholars have extensively and thoughtfully documented the influence of these laws on our immigration system, persuasively arguing that foundational norms undergirding subsequently adopted general immigration laws were initially forged through practices and doctrines established in the context of the Chinese exclusion laws.²⁰⁵ As Lucy Salyer in particular has demonstrated, the struggle and precedents that emerged from these laws—including the Geary Act—had “radiating effects” on the law and a “powerful effect on the shape and enforcement of immigration laws throughout the nation” that has continued to the present day.²⁰⁶ And, of course, the existence of this law mattered—after all, the awareness that the government could exercise its power in a particular way can have significant impacts in society even if that power is infrequently used.²⁰⁷

Yet, for present purposes, it is worth focusing on Section 6 in particular and recognizing that its legal validity was deeply disputed, the relative use of its arrest provision was quite limited, and those arrested and prosecuted under Chinese exclusion laws were brought before a judicial officer; as such, it offers a poor gauge of broad assent to probable cause determinations made solely by executive officers.²⁰⁸ Moreover, as the next Part shows, this warrantless arrest provision neither quelled the concerns voiced decades later in debates about subdelegating the power to authorize deportation arrests to ministerial enforcement officers nor served as a model for the warrantless arrest processes eventually adopted. In other words, while Section 6 presents a historical example of low-level enforcement officers having authority to authorize initial arrests in a subset of cases, it was an aberration, a highly contested one, and one that, in the early 1900s, was quickly eclipsed by the use of the secretary-issued warrant scheme described above.²⁰⁹

In sum, although the early immigration structure was notoriously devoid of process and protections for those within it, the early deportation arrest scheme was different in important ways. With the exception of the contested and comparatively infrequently used process under Section 6, the early deportation arrest scheme was designed to be relatively rigorous and befit the quasi-judicial status it was often ascribed. It included demanding evidentiary requirements, required articulable facts demonstrating the factual and legal basis for the arrest, and imposed a separation between the ministerial enforcement officer seeking the arrest and the structurally distinct, high-level adjudicator determining whether that evidence showed probable cause. Thus, while the conventional account articulated in Abel is correct to the extent that it reports that a substantial portion of deportation arrests were authorized by executive officers in the early federal system, it glosses over the very different way that this executive arrest authority was structured. Specifically, it ignores the fact that the system was designed to impose far greater constraints on officers’ arrest authority and a mechanism for robust, structurally separate review that is absent in the modern deportation arrest regime. Given these distinctions, it is difficult to conclude—as virtually all courts to consider the issue have—that the acceptance of this early scheme justifies deportation arrest practices today.

III. Considering and Resisting Subdelegation

But the question of whether to expand the power to authorize deportation arrests beyond the secretary reemerged more strongly in the decades that followed as powerful nativist forces gained sway in Congress. This Part begins by describing how the deportation system transformed as legislators adopted restrictive laws that dramatically changed the bureau’s work; it then recounts the decades-long debate about the practical challenges associated with administering an expanding deportation regime with only a single warrant-issuing entity. It demonstrates that, despite these phenomena and even amid intense enforcement pressures, Congress consistently declined to adopt legislation that would have permitted the agency to subdelegate the power to authorize deportation arrests within our nation’s interior. Indeed, it shows policymakers’ enduring concerns about the risks of putting this extraordinary power into low-level officers’ hands and—rather than broad sanction—the continued repudiation of a regime like the one in place today.

A. Nativist Pressures and the Deportation Bureau

Although Congress had, between the 1880s and 1920s, expanded the list of people who were subject to exclusion and deportation, “few people were actually excluded or deported” during that time.²¹⁰ But during and after World War I, xenophobia, racism, and anti-immigrant hostility grew in intensity and scope.²¹¹ This—along with increased immigration from certain European countries, lingering wartime nationalism, and a global shift toward rigid, controlled borders—contributed to anti-immigrant nationalism and a perceived need to maintain the ethnic and racial composition of the country’s then-recognized founders.²¹² Consequently, immigration policy and immigration itself began to shift, putting new political and practical pressures on the agency charged with enforcement.

This set of forces provided an opportunity for Congress to pass a wave of restrictive legislation.²¹³ In 1917, Congress passed a new comprehensive immigration law that broadened the categories of people subject to deportation, extended the statute of limitations for certain deportation grounds, and eliminated it in others.²¹⁴ But the 1917 law, like prior general immigration laws, did not impose the numerical restrictions the public increasingly demanded, and Congress soon began considering laws that would.²¹⁵ In 1921, Congress adopted the first immigration law that numerically restricted European immigration based on country of origin, limiting entry to 3 percent of the foreign-born population for each nationality under the 1910 census.²¹⁶ Three years later, it adopted the “Quota Act” of 1924, which limited immigration even further and, to preserve the racial dominance of the white population in the United States before the recent waves of immigration, adopted an even more restrictive national origins quota.²¹⁷ In addition to constricting lawful entry, the Act also dramatically increased the pool of people subject to deportation by eliminating the prior statute of limitations on deportability for many who entered in violation of entry restrictions and by rendering deportable those who remained longer than the Act permitted.²¹⁸ And, in this same period, Congress continued to expand this regime by enacting new conduct-based grounds to exclude and expel noncitizens.²¹⁹

This belt-and-suspenders legislative agenda transformed the bureau’s mission. Following the adoption of these sweeping numerical limitations on entry, the number of people excluded from the United States increased almost three-fold;²²⁰ consequently, “the inducement to enter illegally” increased dramatically as well.²²¹ This, the retraction of statutes of limitations for major grounds of deportability, and the creation of new grounds of deportability for postentry conduct, meant far more people in the interior who were permanently subject to arrest and deportation.²²² These features, as historian Mae Ngai has shown, “spurred a dramatic increase” in deportations and deportation’s rapid ascension to “a central place in immigration policy.”²²³ Indeed, as the secretary of labor’s Committee on Administrative Procedure recognized some years later, “deportation became the chief emphasis” of the bureau, one that “[o]vershadow[ed] all else.”²²⁴ And because this intense focus on interior enforcement meant bureau personnel “go[ing] out and look[ing] for aliens unlawfully in the country” in a way they previously had not,²²⁵ the bureau was able to justify funds for its long-sought internal expansion.²²⁶

B. Rejecting Subdelegation

Against this backdrop, the question of expanding deportation arrest authority reemerged. One of the earliest and most enduring calls for this expansion came out of a 1923 meeting of the Interstate Conference on Immigration, a ten-state coalition focused on securing legislation to reduce “the burden of the alien insane.”²²⁷ While the conference had a number of complaints about the federal government’s “laxity” in enforcement, the expansion of warrant-issuing authority—specifically the subdelegation of arrest-warrant-issuing authority to the local commissioner in charge of each district or port—was first on its list of legislative priorities.²²⁸ This push was led primarily by Conference Chair Spencer Dawes (an influential immigration-restrictionist) who sought to increase the number of arrests and deportations by making the arrest-warrant-issuing power more diffuse and local.²²⁹

Dawes’s proposal for expanding interior arrest authority became a regular feature of the House deportation debates of the 1920s, beginning with the eugenics-laced hearings preceding the enactment of the 1924 Quota Act. During these hearings, Representative Raker raised the idea of expanding warrant-issuing authority by introducing the conference chair’s recommendations as “worthy of consideration.”²³⁰ Dawes’s testimony highlighted the arrest-warrant recommendation in particular, “most emphatically” advocating for the transfer of arrest-warrant-issuing power to local authorities.²³¹ Ultimately, Dawes’ warrant proposal received little additional attention then and did not materialize in the Quota Act. But Dawes was a vocal public figure and held particular sway with the nativist-dominated House Committee on Immigration and Naturalization (“House committee”),²³² and some version of this warrant proposal reappeared regularly in House committee hearings (and the press) through the 1920s.²³³

Even after the passage of the Quota Act, restrictionists felt that Congress had not gone far enough,²³⁴ and legislators remained busy considering legislation focused on increasing immigration enforcement for the remainder of the decade.²³⁵ A number of these bills took up the suggestion to expand the agency’s arrest authority. While none passed the Senate and few even passed the House, the debates on the arrest legislation illustrate the concerns with even a limited expansion of such authority: several examples should suffice.

For instance, during a hearing in late 1924, the committee invited various immigration officials to propose “anything that may . . . be helpful” as they considered extending or “stiffening” the deportation laws.²³⁶ Commissioner Curran, who oversaw immigration enforcement at Ellis Island, elevated Dawes’s proposal to expand warrant-issuing authority by identifying the delegation of warrant-issuing authority to commissioners of local districts or ports as a priority.²³⁷ Unlike Dawes, who advocated for the diffusion of warrant-issuing authority to generate more deportations and allow local actors to exert greater influence in the outcome of deportation proceedings, Curran justified his request from an administrative perspective. He explained that, “[i]f it were possible for the wise discretion of the Secretary of Labor to be exercised instantaneously in the issuance of warrants,” there would be no problem, but the week-to-ten-day delay between the application and the arrival of the warrant rendered it moot; by then, he explained, “the alien has escaped.”²³⁸ For that reason, he argued, the warrant-issuing power should be exercised by officers “right on the ground.”²³⁹ Notably, however, he only sought it for the higher-level officers in charge of each district and not for low-level officers who investigated cases and effected arrests.²⁴⁰

At this point, Dawes interjected, arguing that Congress should make this delegation even broader by vesting warrant-issuing authority in “any immigration official,” rather than only the high-ranking secretary or commissioner in charge of districts and ports.²⁴¹ He noted, however, that when he had advocated for such an expansion of warrant-issuing authority before, he had gotten “interference,” and he again found resistance to his suggestion.²⁴² Representative Vaile and Curran both disagreed, maintaining that this authority ought not be so widely delegated; it should only be wielded by “somebody in authority.”²⁴³ Ultimately, a hybrid expansion provision giving warrant-issuing authority to both the commissioner-general and any immigration official to whom he delegated the power made its way into the bill that passed the House, but did not pass the Senate.²⁴⁴

The issue of expanding low-level immigration officers’ authority to arrest suspected noncitizens in the interior was also raised—and even more firmly repudiated—in discussions about legislation expanding border enforcement. Yet another major expansion of immigration enforcement initiated in the 1920s was the creation of the U.S. Border Patrol, a dedicated enforcement force with the bureau.²⁴⁵ This border “police force” was initially comprised of “patrol inspectors” charged with policing the nation’s borders and especially preventing barred individuals from entering unlawfully.²⁴⁶ Despite this mandate, it was unclear whether patrol inspectors had any arrest authority under the immigration laws.²⁴⁷ This was a particularly complicated question because patrol inspectors were seen as distinct—the “policem[e]n” on the border—and it was “not desired” that they be vested with the same powers as immigration inspectors.²⁴⁸

Accordingly, Senator Reed offered a “clarifying” amendment during a debate on a broad appropriations bill nearing passage in early 1925: he proposed to create statutory authority for officers policing the border to make warrantless immigration-related arrests in certain circumstances.²⁴⁹ Specifically, Reed’s amendment would authorize bureau employees to not only execute deportation arrest warrants, but also make warrantless arrests of any noncitizen “who in his presence, or view, is [unlawfully] entering, or attempting to enter, the United States”; however, it required that they take the noncitizen “immediately for examination before an immigration inspector, or other official having authority to examine aliens as to their right to admission to the United States.”²⁵⁰ As Representative Johnson explained in the House, the focus of the Reed amendment was not on arrests in the interior, but narrowly on the border: its “actual purpose” was “to permit the newly established border patrol to take into custody aliens entering surreptitiously if the border patrol, who is to all intents and purposes a border policeman, sees the act of entry.”²⁵¹

This amendment drew scrutiny because of the concern that it would be applied beyond the border-crossing context—namely, that it would be used to effect deportation arrests against noncitizens already in the interior.²⁵² But Reed clarified in the Senate (as Johnson did in the House) that this amendment only applied “at the border where they are patrolling,” and granted officers “no right to make arrest[s] except on sight of a violation of the immigration law as to illegal entry” and “no right to go into an interior city” to make deportation arrests.²⁵³ Reed’s reassurances echoed the concerns that the agency itself expressed throughout the early twentieth century, reaffirming that “[w]e are all on the alert against granting too much power to these officials” and explaining that the unlawful entry “must be in sight of the officer himself; otherwise he has to get a warrant” to make the arrest.²⁵⁴ With these pledges, the provision passed,²⁵⁵ leaving untouched the default scheme requiring secretary-issued warrants for arrests outside the border-crossing context.²⁵⁶

The proposal to expand the power to authorize deportation arrests continued to emerge in the years that followed. These efforts generally gained little traction outside the House committee, but the hearings illustrate the continued, significant, and apparently shared concerns about vesting this authority in inferior—and particularly low-level—officers. For example, in 1926 hearings on a subsequent iteration of the deportation bill that proposed to vest warrant-issuing authority in the commissioner-general and any other officers that he may designate, then-Commissioner-General Hull singled out the provision as “far-reaching” and one of some concern.²⁵⁷ He explained that there could be some advantage—“solely in the way of saving time”—if the warrant was issued by an officer with sufficient expertise.²⁵⁸ However, “[i]f the number of applications which the warrant division here has denied is any criterion,” he continued, “we would have found ourselves in very serious difficulties, not only financially but legally” if this authority was vested in even “the average immigration officer in charge.”²⁵⁹ Others expressed even greater anxiety about this “seriously defective” provision, arguing that it could result in warrant-issuing power being vested in lower-level immigration inspectors and that such a change would be reminiscent of totalitarian regimes.²⁶⁰ In discussing 1928 legislation with substantially the same provision, the House committee minority objected to the bill’s proposed procedural changes on similar grounds.²⁶¹ Specifically, it protested that the arrest-warrant-issuing and other procedural changes would vest “practically all of the powers” related to the initiation and litigation of removal proceedings in immigration inspectors, making them both “complainants [and] judges”—a significant problem given that they were “not ordinarily gifted with a high degree of judicial qualities or with freedom from prejudice and bias.”²⁶²

In the end, an “abridge[d]” deportation bill was adopted in 1929, but it did not authorize subdelegating the power to authorize interior arrests.²⁶³ Indeed, House Committee Chair Johnson—who had sponsored the 1928 legislation—explained that the absence of any change to the prior arrest and other deportation procedures was “key to the bill,”²⁶⁴ emphasizing that these longstanding provisions “still stand.”²⁶⁵ Representative Dickstein agreed, calling this bill a “decided improvement” over the prior legislation, as “[i]t does not make the inspectors of immigration judges and jurors or give them any discretionary powers.”²⁶⁶

In sum, despite many immigration-related laws passing during the 1920s,²⁶⁷ Congress consistently rejected legislation that would have subdelegated arrest-warrant-issuing authority and eschewed the idea of warrantless arrests for general interior enforcement. Thus, even in an era of widespread support for increased enforcement and a high point of congressional action on that front, the legislative history of this period reflects little support for—indeed shows resistance to—a deportation arrest scheme in which low-level officers could alone decide whether to bring an individual residing within our polity into the deportation system.

C. Negotiating Expansion and Practical Constraints

Yet given the practical challenges posed by the rising number of warrant applications the secretary was responsible for deciding,²⁶⁸ the agency began more affirmatively seeking legislation authorizing a limited, decentralizing subdelegation of warrant-issuing authority. Through the early 1930s, the number of deportations remained at record highs and enforcement pressures continued.²⁶⁹ This meant that requests for secretary-issued arrest warrants remained at record highs as well.²⁷⁰ Given this and the fact that the demands on the secretary’s time increased as enforcement numbers grew, the delay associated with getting such a warrant had by this point become a major issue for the agency. Part of the problem was the lack of modern technology. Without the ability to obtain records from other agencies via email or easily searchable databases, immigration officials often had to obtain the information that formed the basis of the warrant application from the noncitizen herself.²⁷¹ Unsurprisingly, this frequently alerted noncitizens to the investigation and sometimes led them to flee.²⁷² A related problem was the one the bureau had raised “for years”: the delay in actually receiving warrants from the secretary allowed subjects of investigations to abscond before officers could lawfully effect arrests.²⁷³

Accordingly, to “decentralize and expedite” the issuance of arrest warrants, the agency began to more persistently and pointedly ask Congress to give the agency authority to subdelegate the power to issue deportation arrest warrants to high-level executive officers.²⁷⁴ The commissioner-general’s recommendation in 1932, for example, is emblematic of what had become, as he described it, a “perennial” request;²⁷⁵ he sought legislation “provid[ing] that arrest warrants may be issued by commissioners and district directors,” either through a transfer of warrant-issuing authority to them or by giving them “equal power in that regard” with the secretary.²⁷⁶ However, even in requesting an expansion of warrant-issuing power, the bureau acknowledged the “dangerous” potential for abuse if it was placed in low-level officers’ hands and opposed further subdelegation, particularly if it meant those officers making arrests without “coming to the department” first.²⁷⁷ Thus, even while advocating for some decentralization and diffusion of warrant-issuing power, the agency continued to recognize the gravity of this power, potential for abuse, and need to constrain its use.

In the absence of a reliable way to get warrants before targets of investigations fled, enforcement officers responded by violating the agency’s rules.²⁷⁸ Specifically—despite the higher-level concerns about vesting too much arrest authority in ministerial officers—low-level officers regularly arrested suspected deportable noncitizens in the interior before a warrant was issued, detaining them briefly while seeking a warrant and sometimes while still gathering facts to support the application.²⁷⁹ But the agency acknowledged then—and thereafter—that there was “no legal authority” for the practice.²⁸⁰ As Professor Kang’s illuminating, in-depth account of internal efforts to end this practice shows, the unlawful arrests became the subject of agency scrutiny in 1933 and 1934 due to mounting criticism, potential legal liability, and the fact that then-Commissioner-General MacCormack considered compliance with the governing warrant procedure important to the constitutionality of the arrest.²⁸¹ Ultimately, the bureau—which became the Immigration and Naturalization Service (“Service”) in 1933—issued an internal directive clarifying that officers were prohibited from executing warrantless arrests in the interior except when pursuing noncitizens caught crossing the border,²⁸² bringing agency practice for deportation arrests back into compliance with the longstanding scheme described in Part II.

While this directive helped realign enforcement practices with existing law, the practical problems with the warrant regime continued to impede enforcement,²⁸³ and the corresponding reduction in arrests apparently inflamed legislators as well. Indeed, learning that so many noncitizens “escaped deportation because the Service would not resort to illegal procedure”²⁸⁴ (i.e, warrantless arrests) appeared to galvanize Congress in a way that the agency’s previous requests had not and unleashed a new flurry of legislation proposing to expand arrest authority through the remainder of the 1930s.²⁸⁵

By this point, there was broad consensus that the current system of requiring secretarial warrants pre-arrest was not working, so the major percolating question was not whether to change the deportation arrest scheme, but how. Virtually all of the legislation proposing reforms to deportation arrests contained two principal features: first, a provision permitting a limited subdelegation of warrant-issuing authority to high-level officers outside the Service’s central office, and, second, a provision authorizing low-level officers to effect warrantless arrests and briefly detain people while obtaining warrants from a high-level officer.²⁸⁶

The proposals to subdelegate warrant-issuing authority to high-level officers encountered little opposition. At least internally, there was some recognition within the Service of drawbacks to these proposals: the risk of being influenced by local pressures, a lack of uniformity, and error, particularly given the inability to quickly access the legal advice from the central office.²⁸⁷ But the delay in getting warrants made the current system plainly unworkable in the agency’s view.²⁸⁸ Moreover, agency officials explained to legislators, localizing and expanding the number of warrant-issuing officers would likely lead to better determinations because the sheer volume of arrest-warrant applications and other matters under the secretary’s purview meant that she was not able to conduct a searching review of the applications anyway.²⁸⁹ Accordingly, even while working to rein in officers who violated existing arrest restrictions, the agency continued to support the concept of slightly subdelegating and significantly geographically expanding warrant-issuing authority.²⁹⁰

The agency’s reasoning resonated more broadly. As one illustrative House report explained, legislators supported the proposed subdelegation because, “if field officers were required to sign themselves the warrants which they now obtain by application to a higher authority they would feel more immediate responsibility and verify more carefully the grounds for arrest.”²⁹¹ Probably more importantly from their perspective, the proposal would reduce the risk of suspected deportable noncitizens escaping. More progressive contemporaries and scholars appeared to generally agree on the practicality of subdelegating arrest-warrant-issuing authority, with some focusing on administrability challenges in the present system and others on the rubberstamp-like quality that adjudication of arrest warrant applications had assumed.²⁹²

Yet even this limited expansion of the warrant-issuing power raised some concerns. These apprehensions stemmed in part from the growing appreciation for separating administrative enforcement and adjudication powers in general and within the immigration system in particular.²⁹³ From its early days, the administrative deportation system was designed such that the same enforcement officers who investigated cases also played a judge-like role in the adjudication of deportability, in essence serving as both ICE enforcement officers and a version of today’s immigration court judges.²⁹⁴ But consistent with broader trends in the administrative state, the Service was starting to reevaluate that approach and take measures to separate enforcement and adjudicatory functions.²⁹⁵

This concept of separating functions emerged in the context of these warrant discussions but was stymied by the limits of the then-administrative structure. For example, one influential government-commissioned study of the immigration system recommended decentralizing arrest warrant-issuing authority and assigning it to independent local adjudicators.²⁹⁶ Acknowledging the burden that shifting these cases to the Article III judiciary could impose on district courts, the study instead proposed that deportation arrest warrants be issued by local adjudicators within the independent tribunal it recommended creating.²⁹⁷ Representative Kerr made a similar suggestion in a 1935 House committee hearing: he wondered why the warrant-issuing responsibility couldn’t be assigned to U.S. commissioners (who were part of the federal judicial branch) rather than other administrative officers.²⁹⁸ However, his suggestion also died due to practical constraints: Commissioner-General MacCormack explained that there were simply not enough U.S. commissioners to meet the need, indeed it was already tough to get arrest warrants from them in Chinese exclusion law cases.²⁹⁹ And a milder version of this concern about officers acting as both investigator and adjudicator was also reflected in virtually all of the subdelegation legislation of that era in provisions that, while expanding warrant-issuing authority, would have prohibited officers from issuing warrants to authorize their own arrests.³⁰⁰

These concerns about the potential for abuse were magnified exponentially when it came to the second proposal: authorizing warrantless arrests and detention for a brief period to allow officers to get a warrant. For at least some supporters of such a provision, this was advantageous because it would eliminate the risk of escape while officers obtained warrants and thereby “greatly increase the number of deportations.”³⁰¹ Yet these bills included what were seen as important safeguards: a requirement that the noncitizen arrested without warrant be “immediately” presented to another inspector and a prohibition of detention for more than twenty-four hours without a warrant.³⁰² And even then, supporters raised questions about the propriety of permitting agency employees to effect warrantless arrests, noting that its wisdom was “perhaps something debatable, because it is contrary to our general traditions of personal liberty.”³⁰³

Others testifying before Congress raised even greater objections, describing the dramatic devolution of this “extraordinary power” as “likely to abuse,”³⁰⁴ “a dangerous lodgment of power in the hands of an over-zealous official,”³⁰⁵ and an affront to longstanding traditions and personal liberty.³⁰⁶ And the agency itself, which initially—if with some reservations—supported the concept of permitting brief warrantless arrests and detention, ultimately opposed it on constitutional grounds, as agency counsel had reportedly concluded that it would violate the Fourth and Fifth Amendments.³⁰⁷ In fact, the then-secretary of labor’s 1939 statement to Congress reaffirmed the depth and durability of the agency’s position regarding the deportation arrest power; she explained that this power (together with the authority to detain and deport) was “in many respects the most serious and the most drastic administrative power vested in any executive officer in our Government” and, as a result, must be wielded with “a sense of the importance of the judicial duty” that it was.³⁰⁸ In the end, through the 1930s, none of these proposals to expand deportation arrest authority passed.

Thus, our nation’s deportation laws—and with them the deportation system—expanded enormously through the 1920s and 1930s, due in large part to the nativism-fueled surge of immigration legislation in this period. This transformed the agency’s mission and gave rise to a host of administrability challenges as the agency attempted to satisfy the demand for increased deportations in the absence of modern technology and the type of decentralized, structurally distinct adjudication that exists in the modern immigration scheme. Yet, despite these enforcement pressures and practical constraints, neither legislators nor the agency adopted an arrest system like the one we have today: one that permits low-level officers alone to authorize the arrest and extended detention of people firmly within the nation’s interior. On the contrary, through the 1920s and 1930s, Congress and the agency itself rejected the concept of vesting officers with that kind of authority, often citing concerns about precisely the types of problems that have emerged today.

IV. Accepting and Embracing Subdelegation

The coming of World War II brought abrupt changes to the Service and thrust it into the role of a national security partner. This Part describes how, amid this war and new mandate, the deportation arrest scheme began to dramatically change. It traces the subdelegation of deportation arrest authority within the immigration enforcement agency from then to the present and describes deportation arrest authority’s unusual place within the agency’s slow internal separation of powers. It ultimately shows how, despite decades of resistance to placing such extraordinary power in low-level officers’ hands, war-era fears played an important role in the deportation arrest regime’s fundamental transformation and the creation of an arrest scheme that was not only new and novel when Abel was decided, but largely untested in that case. It also describes how the long history of concerns about subdelegating deportation arrest authority to low-level officers was apparently forgotten, unrevived by peacetime rationality or the new opportunities created by modern administrative structures and technology. In so doing, it lays the groundwork for the final Part, which argues that this history has major implications for the debate about these arrests today.

A. World War II and the National Security Service

In the lead-up to U.S. involvement in World War II, immigration and immigration policy began to markedly shift.³⁰⁹ Immigration experienced a significant uptick, with the number of incoming immigrants rising sharply.³¹⁰ This, together with the impending war, prompted widespread fear of noncitizens who may be disloyal and an explosion of legislation focused on combating “subversive influences”—especially those who were immigrants.³¹¹ As such, Congress turned its focus to efforts to identify and catalogue immigrants in the United States and penalize those who espoused subversive beliefs.³¹²

After war broke out, President Roosevelt undertook a major reorganization of administrative agencies, which included relocating the Service into the DOJ in 1940.³¹³ Roosevelt moved the Service under the attorney general’s purview for national security reasons, on the theory that doing so would allow the DOJ to better control noncitizens and coordinate between the Service and other agency subcomponents prosecuting “alien criminal and subversive elements.”³¹⁴ Taken together, this organizational realignment and legislation had an immediate and discernible impact on the Service’s mission, shifting it even further from mainly regulating admission at borders toward identifying, detaining, and prosecuting individuals deemed a security threat to the state.³¹⁵ And, as a result, the Service soon found itself vested with substantially increased enforcement responsibilities, personnel, and power. ³¹⁶

At the same time, the DOJ gained extensive authority to administratively subdelegate a broad range of powers previously reserved to the attorney general (and, pre-reorganization, the secretary of the Department of Labor). In 1940, as part of its wartime “Alien Registration Act,” Congress explicitly authorized the attorney general to, among other things, subdelegate virtually any of his powers under the immigration laws to “such officers of the . . . Immigration and Naturalization Service . . . as he may designate,” including to low-level officers.³¹⁷ With this clear congressional authorization, the agency suddenly gained the power to adopt—administratively—the changes it had asked Congress to enact for years. Perhaps unsurprisingly then, the new attorney general—already an active voice in the movement to expand agencies’ discretion in this respect³¹⁸—began subdelegating arrest authority shortly after the Service’s relocation to the DOJ.³¹⁹

The devolution of deportation arrest authority began incrementally, but quickly gained steam. It started with a 1940 regulation effecting a limited subdelegation of arrest-warrant-issuing authority—from the secretary to the (still headquarters-based) chief or assistant chief of the Warrant Branch.³²⁰ Just one year later, the DOJ promulgated a regulation delegating warrant-issuing authority to the officer in charge of each Service district (“district directors”), vesting this power in a group of high-level officers dispersed throughout the country.³²¹ While the 1941 regulation permitted this relatively small cadre of officers in charge to issue arrest warrants upon the application of investigating officers, their authority remained limited; they could only issue warrants in cases of “recent illegal entrants” who had entered the country within the last sixty days or, for noncitizens who had resided in the country for longer periods of time and were prima facie deportable, in emergencies where escape was imminent.³²² Thus, the early expansion of this authority continued to reflect a distinction between the constitutional protections afforded to those on the threshold of entry (or very recent entrants) and the greater ones owed to noncitizens already within the national community.³²³

In the latter half of the 1940s—amid still intense fear about foreign threats to the nation’s security³²⁴—restrictions on these high-level officers’ warrant-issuing authority were gradually eliminated. By 1947, the agency had broadened the power of districts directors to authorize the arrest of “recent [unlawful] entrants,” empowering them to issue warrants for the arrest of people who had entered the country unlawfully within the preceding year and for certain “alien seamen.”³²⁵ In 1950, it expanded district directors’ power even further, promulgating regulations allowing them to issue arrest warrants against virtually anyone they concluded was prima facie deportable, regardless of manner of entry or urgency.³²⁶

During this period, the agency also briefly experimented with vesting this power in a small number of slightly lower-level officers who were even more geographically dispersed. In 1947 and 1948, it extended this power—with additional limitations—to the officers in charge (and one assistant officer in charge) of nine suboffices that were located far from their district offices. ³²⁷ However, the agency reversed course in 1950, rescinding that power, redelegating it to the commissioner-general and the assistant commissioner, and again limiting arrest-warrant-issuing authority outside the central office to district directors.³²⁸

Thus, by the end of 1950, the agency had administratively implemented the warrant-authority change it unsuccessfully sought from Congress through the 1930s: it decentralized and expedited the issuance of virtually any type of deportation arrest warrant through regulatory changes that granted the authority to issue them to approximately twenty geographically dispersed, high-level officers.³²⁹

While declining to subdelegate warrant-issuing authority further, the agency also began seeking to expand officers’ authority to make warrantless deportation arrests in the nation’s interior.³³⁰ In 1944, then-Attorney General Biddle requested that Congress enact legislation authorizing Service officers to make warrantless arrests in the interior even where the officer was not pursuing someone they observed crossing the border.³³¹ He argued that the existing requirement of a warrant to arrest any suspected noncitizen who was not “entering or attempting to enter the United States in the [officer’s] presence or view” was “cumbersome” and “at times results in frustrating the ends of justice.”³³² But Biddle may have appreciated the need for at least some additional review to guard against extended custody on only the arresting officers’ assessment of probable cause, explaining “[t]he power to make arrests in such cases without a warrant should be conferred on personnel of the Immigration and Naturalization Service with a restriction that an alien so taken into custody should be accorded a hearing without unnecessary delay.”³³³

In 1946—a year marked by a record number of unlawful entries and still-fervent fears about noncitizens who may threaten national security³³⁴—Congress granted this request, passing legislation that, among other things, broadened the limited warrantless arrest authority conferred by the 1925 Act and extended it into the interior.³³⁵ Specifically, this law allowed the Commissioner-General to “prescribe”—with the attorney general’s approval—regulations authorizing “[a]ny employee of the Immigration and Naturalization Service” to make warrantless arrests of any noncitizen in the interior in violation of the nation’s immigration law who was “likely to escape before a warrant can be obtained.”³³⁶ The law reflected only a hint of the timeframe for presentment that had been omnipresent in the legislation proposed in the 1930s;³³⁷ it provided that the noncitizen be presented “without unnecessary delay” to an examining officer, that is, an “officer of the Immigration and Naturalization Service having authority to examine aliens as to their right to enter or remain in the United States.”³³⁸

The 1946 Act’s express permission to subdelegate—and minimal instruction regarding implementation—left the DOJ substantial latitude, which the agency used to subdelegate warrantless arrest authority broadly, deeply, and largely without constraints. It devolved the power to make warrantless arrests down to patrol inspectors and immigration inspectors—officers at some of the lowest rungs of enforcement.³³⁹ With respect to the law’s requirement that an examining officer conduct a second assessment of the noncitizen’s right to enter or remain, the DOJ delegated this power expansively too: it authorized any immigration inspector (or Service employee designated to act as one) to serve as an examining officer empowered to sign off on whether the alleged noncitizen should be charged, prosecuted, and subjected to extended detention.³⁴⁰

The regulations did gesture toward some administrative separation of functions, specifying that immigration inspectors should only serve as examining officers in cases in which they effected the arrest if “no other qualified officer [was] readily available and the taking of the alien before another officer would entail unnecessary delay.”³⁴¹ But that was not a hard rule and, even if it had been, the officers who decided whether there was a sufficient basis to detain the arrested individual were still the same officers charged with investigation, enforcement, and deportation.³⁴²

Thus, although the arrest regime continued to reserve the power to authorize deportation arrests based on warrants to high-level officers not so enmeshed in policing and investigation, the longstanding procedures designed to require rigorous investigation and structurally distinct review pre-arrest were eliminated in a significant proportion of cases. In short, this combination of war-era legislation and the DOJ’s far-reaching regulations fundamentally changed the nature and implementation of deportation arrest authority in the span of a decade marked by war.

B. Separating Powers

In one sense, this devolution of the power to authorize arrests was a major departure from the protections that had surrounded it in the past and its historical reservation to the highest echelons of administrative power. In another, however, it was neither surprising—nor comparable to the structure in place today—because of blurred lines between enforcement and adjudication at that time. The 1940s subdelegations vested the power to authorize arrests in officials who then played several roles—including law enforcement officer and judge. For example, warrant-issuing authority was subdelegated to district directors, who both supervised immigration enforcement and played a major (even decisive) role in adjudicating deportation proceedings.³⁴³ Similarly, allowing immigration inspectors to serve as examining officers placed the power to sign off on the validity of a warrantless arrest in the hands of officers who served as law enforcement and in a judge-like role as presiding hearing officers.³⁴⁴ Accordingly, though these subdelegations represented a major shift from the scheme that treated deportation arrest authority as an “extraordinary” power, it is not clear that there was any consensus—particularly from Congress—that the power to authorize arrests was appropriately placed in enforcement versus judicial hands or whether it simply represented a triumph of a system that prioritized bureaucratic policymaking and practicality over careful attention to constitutional principle.³⁴⁵

The increasing attention to separating powers within administrative agencies generally eventually forced structural change within the immigration system.³⁴⁶ These concerns played a major role in motivating the Administrative Procedure Act of 1946—in particular its provision requiring separation between adjudicatory and investigative functions in administrative hearings.³⁴⁷ This mandate only briefly governed deportation proceedings,³⁴⁸ as Congress first legislatively exempted deportation proceedings from it and then displaced the APA hearing scheme in deportation proceedings with one set forth in the 1952 Immigration and Nationality Act (“INA”).³⁴⁹ But the APA nevertheless influenced the modern deportation adjudication structure, as the INA imposed a version of the APA’s separation-of-functions rule. Specifically, the INA created a distinct corps of “special inquiry officers” (the functional equivalent of today’s immigration judges)³⁵⁰ to preside over deportation hearings and prohibited them from hearing deportation cases in which they had played an investigative role.³⁵¹ And, in 1956, after a separation-of-powers challenge to the still-somewhat commingled functions permitted by the INA,³⁵² the DOJ promulgated a regulation that further decoupled enforcement and adjudication by removing the supervision of special inquiry officers and hearings from district directors’ purview, leaving district directors solely charged with enforcement.³⁵³

From there, the Service’s internal separation of powers proceeded, if less quickly and completely than sister agencies. In 1983, the attorney general moved the immigration court system out of the Service and into a newly created DOJ subcomponent, the Executive Office for Immigration Review.³⁵⁴ And in 2002, Congress drew an even clearer line, moving enforcement responsibilities into the newly created DHS and leaving the immigration court system in the DOJ.³⁵⁵

Yet the adjudication of the validity of arrests did not follow suit. At the outset, retaining warrant-issuing authority as an enforcement function made some sense. After all, the arrest warrant itself played a dual judicial and prosecutorial role: it served both as an adjudication that there was probable cause for an arrest and as the charging document that initiated the deportation prosecution.³⁵⁶ And even after the agency began using a separate charging document to initiate deportation proceedings,³⁵⁷ these charging documents were required to be “regarded as a warrant of arrest,”³⁵⁸ meaning that the agency’s decision to charge someone as deportable remained fused with its authorization of the arrest. Consequently, even if there had been administrative officers acting in a purely judicial capacity when arrest authority was initially subdelegated (which there was not), it would have been incongruous to assign them warrant-issuing authority because doing so would have required them to also perform the “quintessential[ly] prosecutorial function” of deciding what charges to bring and when.³⁵⁹

Thus, when the power to determine probable cause was subdelegated, it was not initially assigned to specifically enforcement versus judicial officers. Rather, as the Service slowly unbundled enforcement and adjudicatory functions once vested in a single type of officer, the adjudicatory aspect of issuing arrest warrants was left out, perhaps due to the particularities, constraints, and understandings within the administrative apparatus at the time. As a result, even this period’s devolution of the deportation arrest authority was not a clear endorsement—particularly not by Congress—of putting the power to authorize arrests in the hands of enforcement as opposed to judicial officers.³⁶⁰

C. Subdelegating All the Way Down

The final major development in deportation arrest authority also came in the throes of war. Although the latter half of the twentieth century saw great strides in making immigration law more administrable and in certain respects more humane,³⁶¹ immigration policy and practice shifted sharply in the early 2000s. Following the September 11, 2001 attacks committed by noncitizens lawfully in the country, the United States launched a global “war on terror” and a massive effort to detain and expel people deemed suspicious using the immigration laws.³⁶² Indeed, the nation’s immigration system quickly became “ground zero” in the newly declared war,³⁶³ and policymakers launched a wide-ranging effort to ramp up immigration enforcement and restructure it to play a national security role.³⁶⁴ Congress, as mentioned, created DHS to carry out this national security mission, charging it with immigration enforcement and dramatically changing the nature of immigration law, policy, and practice.³⁶⁵

During this time, the immigration enforcement agency gained enormous power to arrest and detain not only immigrants suspected of posing specific risks to national security, but also noncitizens in run-of-the-mill deportation cases. Less than ten days after the 9/11 attacks and while launching other widescale detention efforts “target[ing] noncitizens from Arab, Muslim and South Asian countries,” the agency began expanding officers’ arrest and detention authority.³⁶⁶ To start, it eliminated the decades-old rule requiring that, twenty-four hours after any warrantless arrest, the agency must determine whether to charge the person as removable and the small set of high-level officers with arrest-warrant-issuing authority must separately determine whether—in the agency’s view—the noncitizen should, in fact, be detained.³⁶⁷ Citing the “recent terrorist activities,” the agency replaced the prior rule with an “interim” rule expanding the timeline for this post-arrest process to forty-eight hours or, in cases of “emergency or other extraordinary circumstance[s],” then “within an additional reasonable period of time.”³⁶⁸ The regulation did not then—and does not now—define the outer limits of “extraordinary circumstances” or the additional time that the agency may take.³⁶⁹ Accordingly, this regulatory change in the immediate aftermath of 9/11 removed a longstanding limit on extended detention based only on a low-level officer’s say-so, and this “interim” rule remains in place today.³⁷⁰

Shortly thereafter, the agency again transformed and radically expanded enforcement officers’ arrest authority. Although the immigration enforcement hierarchy—like much of the administrative state—had proliferated through the twentieth century, it was still the case that only twenty types of enforcement officers—all high-level—could issue deportation arrest warrants when the 9/11 attacks occurred.³⁷¹ However, in 2003, DHS promulgated regulations that nearly doubled the types of officers who could exercise this authority, devolving it down to a range of lower-level officers, including those solely charged and intimately engaged with detention and deportation.³⁷² In 2005, DHS devolved warrant-issuing authority even further down the chain, subdelegating it to forty-nine types of enforcement officers and claiming authority to grant it—informally and without further rulemaking—to any other federal employee it chooses.³⁷³

Thus, amid the war on terror, the agency vested the power to issue deportation arrest warrants in some of the lowest levels of enforcement officers³⁷⁴ and, in so doing, dramatically expanded the raw number of warrant-issuers.³⁷⁵ DHS adopted major changes that had been rejected in earlier debates about expanding this arrest power—and resisted through the decades that followed. It also did so without a mechanism for public input³⁷⁶ and although it could have vested the authority to adjudicate probable cause in what was, by then, a corps of structurally distinct, geographically dispersed administrative adjudicators: immigration judges.³⁷⁷ And now, twenty years after the attacks, these war-era subdelegations remain—and low-level enforcement officers retain these once-extraordinary powers.³⁷⁸

Of course, the question is not just who theoretically could authorize deportation arrests, but who actually does. Despite the expansive warrantless arrest authority DHS officers now hold, the vast majority of deportation arrests today are based on these administrative warrants. That is because DHS conducts the bulk of its interior enforcement through partnerships with state and local law enforcement officers, who generally make these arrests based on those administrative warrants.³⁷⁹ Although these warrants could—as in Abel and the statutes on which Abel relied—be issued by district directors or high-level, structurally distinct executive officers,³⁸⁰ new information that I obtained through Freedom of Information Act (FOIA) litigation shows that they are not.

The FOIA records reveal at least three important features of the modern deportation arrest system. First and perhaps most significantly, they show that deportation arrests today are authorized by some of the least-detached and lowest-level agents within the immigration enforcement system. The government’s own admission and a random sample of nearly one thousand warrants show that they are issued mainly by supervisory deportation officers and nonsupervisory deportation officers—that is, officers primarily and intimately engaged in enforcement, detention, and deportation.³⁸¹ Second, these records show how devolving this power has also made it more diffuse, revealing that it is now regularly exercised by a force of over 7,000 officers.³⁸² Third, these records reveal that the agency now permits a host of other types of government agents—those not expressly subdelegated such authority under existing regulations—to issue warrants of arrest.³⁸³ Thus, this new information shows the extent to which our current system has transformed from its early design and even since Abel, and it raises unsettling questions about the limits of the agency’s power to subdelegate, especially through subregulatory changes.

The troubling consequences of such an arrest system were predicted decades ago and have, predictably, come to pass. As even early proponents worried, vesting deportation arrest authority in low-level officers has contributed to rights violations, the detention of U.S. citizens, and other abuses of unchecked discretion. It has also allowed officers to arrest and detain based on stereotypes, impermissible bias, and facts far short of probable cause. And the harms that flow from these arrests are compounded by the length and presumption of post-arrest detention,³⁸⁴ particularly now that some noncitizens are categorically ineligible for release on bond and even those eligible bear the burden of proving entitlement to release.³⁸⁵ In sum, modern practice has tested—and ultimately borne out—the early and then-prevailing apprehensions about placing such “a dangerous lodgment of power in the hands of an over-zealous official.”³⁸⁶

V. Implications

Understanding the fuller history of deportation arrests provides insights about the modern enforcement system that are critical for evaluating Abel’s import and the constitutional validity of the deportation arrest regime more broadly. This Part discusses these implications. It describes some of the key insights from this history and argues that, despite courts’ near-unanimous conclusions to the contrary, the deportation arrest regime’s history does not justify current practices; indeed, it conflicts with the early federal design and longstanding structure. This Part explains that, more fully understood, this history reinforces the need for structurally distinct, detached, and neutral officers to determine probable cause for arrests or detention.

A. Reconstructing Deportation Arrests’ History

First, this Article provides important information about the origins of a massive, nationwide civil arrest regime and helps illuminate why the scheme evolved as it did. For instance, it reveals a very different set of background assumptions about the nature and exercise of the power to authorize deportation arrests than the commonly held view suggests. It also underscores the relationship between the subdelegation of deportation arrest authority and wars presenting existential threats to the nation. Of course, the fact these major subdelegations were made in extraordinary circumstances does not necessarily negate the government’s power to do so, but understanding the sociopolitical circumstances and longer trajectory places them in context. Here, it dispels the pervasive belief that our modern deportation arrest system reflects practices honored “from almost the beginning of our Nation,”³⁸⁷ and it aligns the major subdelegations of arrest authority with the exercises of governmental power that accompanied them: wars, internment of Japanese and Japanese-American citizens,³⁸⁸ and pretextual enforcement against men perceived to be from Muslim-majority countries.³⁸⁹

Second, this history demonstrates that the arrest system in place today was shaped in significant part by long-gone practical and structural constraints. As this Article describes, subdelegation began occurring when the arrest regime was dramatically expanding and faced with major challenges. At that time, the agency was hamstrung by the inability to convey information to a centralized adjudicator with sufficient speed and the absence of decentralized, independent decisionmakers authorized to quickly adjudicate probable cause.³⁹⁰ And legislators’ and administrators’ options for expanding the power to authorize deportation arrests were constrained by the limited alternatives within the then-administrative system. But times have changed. Accordingly, this account indicates that, in today’s world of structurally distinct, geographically dispersed immigration judges, a regime focused on arresting people already detained by state or local law enforcement (so unlikely to flee), and the ability to convey information in real-time, we should expect different choices for probable cause adjudication.

In offering this account, this Article contributes to ongoing conversations—in both scholarship and litigation—on the constitutional validity of modern enforcement processes and the role of history in understanding the current regime.³⁹¹ It also seeks to contribute to broader discussions of the role that the development of federal administrative practices has played in the construction and conception of modern civil liberties law.³⁹² While scholars writing in this space have documented the ways that agencies helped establish rights and protections for individuals in different arenas, the immigration agency’s policymaking has often worked—as Professor Kang points out—to limit these protections, particularly for immigrants.³⁹³ This Article adds to this conversation and complicates the prevailing judicial account of the immigration system’s longstanding arrest exceptionalism by showing the very different way that Congress and the agency structured the arrest scheme and how its evolution into the modern regime was neither uncontested nor inevitable. At the same time, it is worth stating the perhaps obvious: this Article offers a fuller account of this scheme’s development, but of course not all relevant history. Granular examinations of particular historical moments and phenomena can powerfully illuminate aspects of both origin stories and contemporary practice; indeed, some of the works cited in this Article not only exemplify this, but also offer models for potentially fruitful further exploration of agency deliberations, court battles, and legislators’ motivations.³⁹⁴ In short, this Article neither begins nor ends the conversation on this history or the other conversations it joins.

B. Reconstructing Deportation-Arrest Doctrine

Understanding the history of this regime is valuable in its own right, but it also has significant doctrinal ramifications. As described, courts from Abel to the present day have relied heavily on history in rejecting constitutional challenges to the deportation arrest scheme.³⁹⁵ Indeed, the perception of historical sanction has shaped not only constitutional doctrine about the safeguards these arrests require, but also the degree to which the very decision to make a deportation arrest—in the liminal space between what falls within and without the immigration system—should be shielded from judicial review. But this fuller history shows that this perception is flawed, with at least two major implications for doctrine.

First, this Article—particularly in combination with Deportation Arrest Warrants—shows that the factual premise underlying courts’ conclusions was flawed, undermining the case law that has relied on it. In Deportation Arrest Warrants, I showed that the modern arrest scheme conflicts with founding-era practices—as the most prevalent expulsion laws of that time (those adopted by the states) vested the decision to arrest in magistrates and tribunals with judicial power and the only federal deportation law from that period did not authorize deportation arrests.³⁹⁶ This Article shows that the history of the federal regime also does not reflect acceptance of or sanction for the modern scheme. This fuller understanding demonstrates that courts have failed to recognize or grapple with the most salient features of this history and the fact that it directly contradicts their ultimate legal conclusions. Independently (and especially taken together), these articles reveal the faulty factual foundations of courts’ legal conclusions, offer courts a sound basis for diverging from the case law rejecting constitutional challenges to these arrests, and provide a strong reason for courts to consider the constitutional validity of these arrests anew.³⁹⁷

Second, this Article offers first-of-its-kind historical support from the federal system for the contemporary claim that detachment and neutrality are critical for adjudicators authorizing deportation arrests. Scholars and litigators have argued that post-Abel case law requiring neutral-probable-cause review for arrests in the criminal context means that the current deportation arrest regime cannot stand. Michael Kagan, for instance, has argued that, given the confluence of precedents recognizing the right to neutral-probable-cause review, the erosion of the civil-criminal divide, and the increased willingness to scrutinize immigration procedures, the government should be compelled to install a neutral administrative decisionmaker—an immigration judge—to review probable cause for deportation arrests.³⁹⁸ Building on this point, Mary Holper has argued that immigration judges are not sufficiently neutral and offered a suggestion similar to Representative Kerr’s, contending that federal magistrate judges should play this role.³⁹⁹ However, despite the pivotal—often dispositive—role that historical practice plays in Fourth Amendment arrest jurisprudence today,⁴⁰⁰ neither they nor the Ninth Circuit, when it considered these issues in Gonzalez, have focused on the historical basis for this claim.

This Article helps fill and adds nuance to that gap. It shows that the question of who can constitutionally authorize deportation arrests cannot be answered, as courts have suggested for decades, by the mere fact that this power long reposed in executive hands. Rather, fealty to this history indicates that the inquiry must recognize the extraordinary, anomalous nature of vesting this power in executive officers and ask whether the officers currently authorizing deportation arrests are sufficiently detached and free from the risk of abuse to play this judicial role.⁴⁰¹

To be clear, this Article does not seek a return to this system’s origins: as others have made all too clear, the early deportation regime violated basic tenets of due process and lacked even the minimal protections that the modern system affords.⁴⁰² But this Article makes clear that, if this regime is to survive constitutional scrutiny—an issue beyond the scope of this Article—it must do so on some basis other than history. Indeed, courts considering the constitutional validity of this scheme will have to grapple with the ways in which it breaks from the early regime and the fact that there are now far more potential options for neutral, detached adjudicators—including immigration and magistrate judges—who could evaluate probable cause. In short, the history set forth in this Article gives courts a reason to reconsider the constitutional validity of this scheme and to find that it falls far short.

Conclusion

The long-accepted history of the federal deportation arrest scheme has been essential to its preservation, undergirding and insulating an enforcement regime that diverges dramatically from otherwise foundational arrest constraints. Yet a closer look at this history contradicts the notion that our modern scheme was historically sanctioned, offers important insight as courts confront new challenges to the constitutional validity of these arrests, and provides robust historical support for calls to fundamentally transform the deportation arrest system.

* Associate Professor of Law, Benjamin N. Cardozo School of Law. I thank Emily Bremer, Gabriel Jack Chin, Paul Finkelman, Mark Fleming, Mary Holper, Eisha Jain, Michael Kagan, S. Deborah Kang, Daniel Kanstroom, Michael Kaufman, Peter Markowitz, Kathryn Miller, Nicholas Parrillo, Michael Pollack, and the participants of the Eighth Annual Administrative Law New Scholarship Roundtable and Junior Faculty Workshop at Cardozo Law for generous feedback on prior drafts and other helpful engagement. I am indebted to Kar Nowakowski, Gabe Cahn, Saul Thorkelson, and Hélène Barthelemy for excellent research assistance and to Eugene Lee and the Michigan Law Review staff for insightful editorial work.