This is my opening statement for the June 9 US House hearing, “Amnesty and Chaos: Abuse of US Immigration Policy.” My full written testimony can be found here.
Thank you all for the opportunity to testify before this task force on Constitutional Rights and Exposing Institutional Abuses.
The Cato Institute’s half-century of research has shown that when constitutional rights are secure, people—whatever their ancestry, background, or birthplace—can thrive.
Unfortunately, our current immigration policy is, indeed, leading to constitutional abuses.
Courts have found DHS has likely violated at least the 1st, 4th, 5th, 10th, and 14th amendments to the US Constitution, as well as the spending power, the taxing power, and the writ of habeas corpus.
DHS agents invade homes without judicial warrants.
They arrest and detain legal immigrants, US citizens, and others without evidence of a violation of law.
They detain Americans based on their perceived race and demographics.
They deport legal immigrants for their speech, and they threaten Americans who lawfully protest or record the abuses.
DHS agents pumped 10 bullets into US citizen Alex Pretti, a nurse for veterans who was peacefully recording them.
Yet officials immediately labeled him a terrorist simply for lawfully possessing a firearm while protesting—a complete repudiation of the First and Second Amendments.
DHS has arrested and falsely accused dozens—maybe hundreds—of people of assaults, only for charges to be dismissed when their lies were exposed.
In fact, most people DHS has publicly accused of assault were never even charged, let alone convicted.
Willful deprivations of constitutional rights under color of law are crimes under section 242 of Title 18 of the US Code.
Yet the violations continue. Why?
Amnesty.
Whatever this hearing’s intent, the amnesty happening now is not for immigrants but for agents who violate the Constitution.
The amnesty has five main sources:
- First, DHS gutted internal review mechanisms by—for example—firing 80% of the Civil Rights and Civil Liberties Office.
- Second, DHS regularly undermines state investigations by withholding evidence to protect its agents, hiding behind their masks
- Third, DHS repeatedly ignores court orders, and last week, the new DHS Secretary refused to repudiate that behavior under oath.
- Fourth, DHS has imposed multiple unconstitutional policies in secret, thwarting judicial review.
- Fifth, perhaps most importantly, the administration tells DHS agents that they have “absolute immunity” and won’t be held to account.
The president’s pardons for his allies further embolden rogue agents.
So what recourse do citizens have? Sadly, very little.
First, you could request a court injunction. Americans believe, somewhat naively it turns out, that “if a policy is illegal, you can just ask a court to stop it.”
In reality, your rights having been violated is insufficient.
You need to show that you’re likely to be targeted again and that blocking the policy is the only way to protect you.
Unless the government admits it will go after you, that’s a huge barrier to stopping the policy.
And, even if you win, DHS is often free to continue the policy against other people.
That’s because of the Supreme Court’s decision last year that no statute permits universal injunctions by district courts.
Your second option is to sue the agents for damages.
But since federal law only allows suits against state agents, not federal ones, there is effectively no way to sue DHS agents for constitutional violations in federal court at all. No matter how egregious the crime.
That’s the real amnesty.
It’s not amnesty when immigrants follow the law and procedures set up by Congress for them to get vetted and get on the right side of the law.
It is amnesty when government agents violate the law and our constitutional rights with impunity.
The opposite of amnesty is accountability.
Instead of targeting peaceful immigrants, Congress should end amnesty for DHS agents by allowing Americans to vindicate our rights in court. Thank you.