Writing at Forbes, civil liberties lawyer and occasional Reason contributor Harvey Silverglate argues that “when it comes to immigrants’ rights, the outcome of Arizona v. United States is less important than you think.” According to Silverglate, that’s because even if the federal government succeeds in having four provisions from Arizona’s controversial immigration control law S.B. 1070 struck down,
we have enshrined into law a series of oppressive violations of immigrants’ rights that are unlikely to disappear no matter which side wins, and which are far more important and troubling than overly zealous enforcement of existing federal law in a given state.
While we refer to them as ‘illegal’ immigrants, immigration violations are not, technically, criminal; they are civil violations (think speeding tickets, only much more serious) with exile instead of a mere fine as the punishment. Due to the civil nature of the offenses, a number of basic protections and procedures available to suspected criminals simply do not exist for suspected illegal immigrants. For instance, if a police officer knocks on the door of your house and wishes to search the premises, she usually must have a warrant signed by an impartial third party, typically a judicial officer of some kind. Not so for an illegal immigrant: Immigration and Customs Enforcement officers themselves, and not a judicial third party, may issue their own search warrants. Moreover, since the warrant is not a “criminal warrant” but rather an “administrative warrant,” the standard for justifying the search—the so-called “probable cause”— is much lower. This would be the equivalent to warrants’ being drawn up by police lieutenants operating on hunches; overzealous enforcement and improper searches would seem inevitable. But such inevitability is irrelevant for illegal immigration cases: there is no “exclusionary rule” for evidence gathered in violation of traditional constitutional norms. Anything gathered by law enforcement, even if obtained unconstitutionally or otherwise illegally, can be used in a deportation proceeding. Contrast again with criminal law, where evidence wrongfully obtained is almost always inadmissible.