Deporting the “Worst of the Worst”

President Trump has said that he wants to deport “the worst of the worst” of undocumented migrants. That’s a goal with which many voters would agree, including me. That’s especially so if you define “worst of the worst” as criminals guilty of serious felonies such as murder, manslaughter, assault, burglary, robbery, financial crimes (fraud, larceny) involving more than $5,000, or gang conspiracies to commit any of the foregoing.

But that’s far from what Trump’s DHS, ICE and CBP are now doing, isn’t it? They’ve been mostly detaining, abusing and deporting people, including children, on suspicion of having brown skin, speaking Spanish (or any non-English language), protesting or resisting unlawful government action, living in an immigrant community (or so-called “sanctuary city”), or having undocumented co-workers, family or friends.

Does that sound like a fair, just and American way—let alone a constitutional way—of getting rid of the worst of the worst? Bear in mind that our Fourth through Seventh Amendments are not limited to citizens or lawful residents but apply to every person suspected of a crime. They require protection against unreasonable searches and seizures and self-incrimination. They also provide the right to be indicted by a grand jury, to have legal counsel, and to be tried by a jury.

So, at very least, what Trump has been doing is unconstitutional, as well as cruel, brutal and stupid.

How would a hypothetically smart, law-abiding president get rid of the “worst of the worst” quickly, constitutionally, and even humanely? Arresting, detaining and deporting people because they live or work in areas where undocumented people congregate is nothing close to “the American way.” But it’s easy to imagine a way that’s not only lawful, but much, much more efficient and effective.

How about detaining and maybe deporting people who have already been arrested (by normal state or federal authorities, not ICE or CBP) on suspicion of having committed a serious crime? Wouldn’t that put the focus on what they did, rather than (unconstitutionally and irrationally) on who they are?

Suppose Congress passed a law as follows. Every person, in any state or D.C., arrested on suspicion of having committed a serious crime (as defined), would be detained, without bail, until having proved his or her citizenship or lawful immigration status. If necessary for reasons of state law or state budgets, the detainee could be transferred to a federal detention facility pending such proof. (This procedure would probably pass constitutional muster, as immigration control is a federal, not state, responsibility.)

Out of fairness to lawful residents without quick access to proof of citizenship (passport or birth certificate) or other evidence of lawful residence, this mandatory detention could be limited to a period of fifteen days. Local government, or DHS, ICE or CBP, could be required to send personnel to retrieve proper documentation from the suspect’s home, place of work or government archives while the suspect were detained.

If proof of citizenship or lawful residence were found, the detainee could be transferred to the proper state or federal prison or perhaps released on bail, and the trial placed on the normal docket. If not, the trial would be on an accelerated calendar, required to be held in, say, sixty or ninety days. After conviction, the detainee could be deported forthwith or (in a more lenient version of this process) after losing an expedited appeal.

A procedure like this could get rid of the “worst of the worst” in an expedited and efficient manner, but in compliance with our Constitution’s protections of all criminal suspects. It would probably “work” constitutionally under the Supremacy Clause, which gives federal laws like those involving immigration precedence over conflicting state and local laws. All our broken Congress would have to do to make this happen is to act.

Such a procedure would have several advantages over what is currently going on. First, it would put the emphasis on catching and deporting serious criminals. Second, it would encourage state and local officials to cooperate with DHS, ICE and CPB because the rules would be just and the feds would share the chores and the expense of temporary detention pending deportation. Third, it would not unlawfully and unfairly distinguish between “blue” and “red” states in applying immigration rules that, according to our Constitution and common sense, ought to be applied evenly nationwide.

There! That wasn’t so hard, was it?

If you really want to get rid of the “worst of the worst” there are much cleverer, more efficient and more effective ways to do it than what’s happening now. Don’t the sheer cruelty, brutality, disorder and unfairness—let alone frequent mayhem—of what we’re doing now tell a lot about our current national leaders and our supine Congress?