If banishment from the greatest country in the world to a place they have never known is not punishment, then what on earth is?
As a growing number of lawsuits have recently said, rescinding DACA is unlawful. Promising to 800,000 Americans a moment of legitimacy only to then withdraw it on a whim violates equal protection, due process and federal-agency law. No one yet has filed, however, the intuitive claim that this is also incompatible with the Eighth Amendment of the Constitution. After all, to deport immigrants raised in America since they were children for the supposed sins of their parents is the definition of cruel and unusual punishment — expelling a person to a country they do not know because of a decision they did not make is as spiteful as it is bizarre.
So why has this trenchant Eighth Amendment challenge not been part of the legal attack on the president’s actions? The main reason is because deportation was long ago classified as civil, not criminal, and the constitutional shield against cruel and unusual punishment only applies to criminal penalties. But the civil designation of deportation hearings is tied to a 125-year-old Supreme Court decision whose moorings have become threadbare with the passage of time, as America’s immigration apparatus has become more and more indistinguishable from our criminal armament.
When the seminal case (Fong Yue Ting v. United States) was decided in 1893, it was the Treasury Department — not the Department of Homeland Security — that was charged with implementing immigration policy. Today, state and local police routinely investigate immigration violations alongside 6,500 federal agents.
President Donald Trump has all but confirmed that immigration policy in America today is inseparable from the fight against crime. He infamously began his campaign smearing Mexican immigrants as “rapists” who brought drugs and crime with them. He has inflamed anti-immigrant sentiment with a dedicated victim hotline and graphic tales of crimes committed by immigrants. And his administration blames them for rising crime and promises strict immigration controls as the antidote.
The president’s rhetoric and policies extinguish what remains of the myth that deportation disputes are civil matters. Moreover, even though we generally limit certain constitutional rights to criminal cases, extending those protections to immigration proceedings for extreme constitutional violations is not without precedent. Evidence from illegal searches is generally permitted at deportation hearings, for example, but if the Fourth Amendment violation is “egregious” — for instance, in cases of patent racial profiling — the constitutional right springs back to life and the evidence is barred.
Society and precedent have changed considerably from the time when core safeguards like the Eighth Amendment were originally declared inapplicable to deportation decisions. And the president’s recent actions provide the perfect occasion to update the law. This is not, however, just about clinically clarifying our constitutional jurisprudence — it’s about acknowledging the reality of what deportation means for Dreamers today, as it hangs like the sword of Damocles over every aspect of their lives.
Immigration enforcement has become the predicate and pretext for countless vehicle stops, searches, detentions, arrests and prosecutions. No one even bothers anymore to disguise the underlying xenophobia in economic terms or to pretend this is about students overstaying their visas. Rather, Trump’s deportation agenda represents a politically charged, conscious strategy to remove a generation of immigrants from the country they call home.
The Framers knew it would be tempting to talk tough about a beleaguered group and to visit upon them draconian hardships in the name of the law. The Constitution’s safeguards, including the Eighth Amendment, were meant to prevent just this. To separate someone from friends and family and to end the life they have built in America — unthinkable consequences for the actions of another — are as cruel and unusual a punishment as one can conceive. To answer that deportation is not punishment is to rely on a technicality that time has made a fiction. If banishment from the greatest country in the world to a place they have never known is not punishment, then what on earth is?