Democrats slammed for siding with GOP on 'cruel and constitutionally dubious' scheme

Republicans are trying to force through a new immigration crackdown bill, termed the Laken Riley Act after a Georgia nursing student believed to have been murdered by an immigrant. The bill is sold as requiring immediate detention of any unauthorized immigrants who commit crimes. Dozens of Democrats backed it in the House and a couple appear open to be supportive of it in the Senate — but passing it would be a disastrous mistake, warned court watcher Mark Joseph Stern for Slate.

Indeed, he noted, "It is baffling that so many Democrats would sign on to such a cruel and constitutionally dubious scheme."

To begin with, Stern wrote, "The Laken Riley Act would not only target undocumented immigrants 'convicted of crimes' of theft, as its sponsors assert. It would also apply to those who are charged but never convicted, as well as those who are arrested but never charged. An individual who is mistakenly arrested because of a police officer’s own error would therefore be ensnared by the law. So would a person who is wrongfully arrested because of racial profiling, prosecutorial malice, or other unconstitutional motives." Any immigrant in this circumstance would have to be detained without bond, no exceptions.

And not just those here illegally, Stern noted: "As immigration attorney David Isaacson has explained, the law would clearly apply to Dreamers — who are authorized to reside here, at least for now. It would also apply to refugees who entered the country without permission but have since been granted asylum. And, due to a quirk in federal law, it would even apply to legal immigrants who leave and reenter the country while awaiting issuance of their green card. Finally, the act applies to minors who are arrested or charged with a crime, despite Democratic Sen. Ruben Gallego’s false claim to the contrary."

But there is an even deeper constitutional flaw in this bill, wrote Stern, which is that it undermines the executive branch's purview over immigration policy. "Both Congress and the court have long recognized presidents’ prosecutorial discretion to prioritize the removal of certain undocumented immigrants over others in light of the practical impossibility of deporting them all. The act would upend that balance by empowering states to seek federal court orders overruling the executive branch’s individual immigration decisions and imposing mandatory detention in individual cases."

In fact, he wrote, this bill could even allow state attorneys general to sue to force the federal arrest of specific people, or to ask federal judges to impose travel bans on entire countries if those countries don't cooperate with the U.S. deportation system. For instance, the law could be used to categorically ban anyone from China or India from obtaining visas, even for high-skilled jobs or for temporary travel, "likely setting off diplomatic crises that the president would have little leeway to resolve."

"Democrats like Gallego and Sen. John Fetterman seem to think Trump’s victory reflects nationwide hostility toward unauthorized immigration that must be channeled into legislative action," wrote Stern — and, he noted, they have proposed amendments that would create exceptions for Dreamers and a few other minor changes. Nevertheless, he concluded, "If Democrats cannot recover their nerve and stand up to this extremism, they will be complicit in the devastating consequences of its passage."