Bad Faith in Immigration Policy

By Mike Koetting January 14. 2025

The recent election demonstrated that a large share of Americans want more control placed on immigration. Fair enough. But the Laken Riley bill that recently passed the House is a deeply troubling response. Presented as a plan to “deport criminals” it is in fact a stealth attempt to rewrite fundamental constitutional provisions. It exemplifies the partisan bad faith with which current politics are being waged.

This law would mandate the detention of anyone who is “unlawfully” in this country who is “charged with, arrested for, convicted of, or admits to having committed acts that constitute the essential elements of burglary, theft, larceny, or shoplifting.” Note this does not require the person be convicted of anything. Presumption of innocence is cancelled. Merely arresting someone for a crime is sufficient. Or having once been convicted, regardless of subsequent events, you could be detained.

So a person who committed a minor crime and completed punishment would nevertheless be subject to being detained. Or an 11-year-old caught swiping a candy bar could be detained indefinitely with no further legal consideration.

This pretty much gives local law enforcement a carte blanche to detain—and presumably deport—any immigrant without official entry documents. Most lawyers think this would extend even to groups here with special provisions, such as Dreamers.

How local law enforcement would use these provisions can’t be completely foreseen, but simply extending such unchecked power is an invitation to abuse, which is why the Constitution protects against such practices.

Putting so much power in state and local authorities is also a trojan horse for undermining the ability of the federal government to set the rules regarding immigration since it would allow the individual municipality to decide who gets arrested with minimal oversight. In fact, the proposed law even allows individual localities and states to sue the federal government if they believe federal decisions are restricting the ability to deport in specific cases. One could imagine some states flooding the courts with such cases.

This bill also highlights the games being played in Congress. By hiding these draconian provisions under the guise of deporting criminals, it is harder to oppose them—even though they go far beyond deporting criminals. These provisions are an attempt to change the fundamental concepts of justice in America for people believed by some to not belong.

Still, even some Democrats (48 in the House, mostly in swingy districts, including Illinois Democrats Budzinski and Sorensen) voted for it. Admittedly, they are in a tough position. After months of Democrats getting lambasted for being “out of step” on immigration issues, it would be hard to vote against a bill touted as “deporting criminals”. The TV ads write themselves. Relying on the American voter to disentangle the nuances is a risky proposition.

There is nothing inherently wrong with a demand for more controls on immigration. Congress should respond to this concern. But that response desperately needs a communal discussion on what controls we want and how those relate to the full range of our national needs, as well as to the obligations of being one of the richest countries in a world beset with problems. These are complicated issues. It is duplicitous to pretend there are easy answers; governing by bumper sticker is a recipe for disaster. Now is the time for people to take a deep breath and step back from trying to score partisan points—or we will suffer through more years of embittering name-calling without a coherent approach, not to mention untold human suffering.

One of the last things we need is a cynical attempt to toss overboard whole categories of constitutional protections cloaked in the disingenuous language of deporting criminals.

It is hard to imagine the Republican Senate saving us from this horrible bill. Maybe, if we get lucky, enough Senators will have second thoughts to sustain a filibuster. That won’t free us from the longer run need to come up with a sustainable and fair approach to immigration. But it could keep us from a big mistake and buy some time for people to talk without focusing so much on rhetorical advantages with no regard for the broader damages to our society that would follow from enacting this proposal.