If a member of Congress wants to prove toughness, count on it, he or she will walk a draconian low road, not a reasoned path, regardless of the pain and suffering that limited vision inflicts.
That happened in 1996, when Congress enacted the Antiterrorism and Effective Death Penalty Act and the Immigration Reform and Immigrant Responsibility Acts, which the U.S. Supreme Court has now struck down as unconstitutional.
These misguided measures aimed to cut crime by having the Immigration and Immigration and Naturalization Service deport immigrants who had committed certain felonies and misdemeanors, including minor drug offenses - post haste, with no discussion and no judicial review of the sort that often produced less harsh results if family hardship and/or a clean record were taken into account.
The Clinton administration had the INS follow the letter of these laws, applying them to those whose misdeeds preceded the punitive legislation. It had to have known better. The Constitution forbids passage of ex post facto - retroactive - laws.
The majority of justices were discomforted by the after-the-fact nature of the deportations. And, given their need to uphold balance with the executive and legislative branches, the judiciary could only be leery of actions by either that put their deeds beyond judicial review. The justices said as much, though the minority, led by the peevish Antonin Scalia, like the depressed Hamlet, groused about the delay in deportations that will result from the majority's will.
The outcome of these laws proved ridiculous. People brought here as infants found themselves on deportation lists to native lands whose language they didn't even speak. Parents with American spouses and American children saw their families torn apart. And people who pleaded guilty to an offense, because they stood a 50-50 chance of having their deportation waived, found themselves victims in an inextricable web of absolutes.
The INS behavior in these more current deportation cases has been as constitutionally offensive as pre-1996 cases, and remains suspect. The rights of people in this country have never been limited to those who were born here. They have appropriately applied to everyone, even if doing so drags out deportation procedures. Even members of Congress should be aware of that.
To deprive people of appeal to a federal court “would give rise to substantial constitutional questions,” Justice John Paul Stevens wrote in his majority opinion. Or, as one expert put it, “If you can't go to court, you can't vindicate your rights.”
The decision takes people whose infractions were committed prior to 1996 off the instant deportation hook, allowing them to seek exemptions under prior rules, though not guaranteeing an outcome. It seems also to allow those seeking redress under the 1996 laws a crack at a federal court review, again with no guarantees.
Given that this country is becoming once again a nation of migrants, it behooves Congress to revisit these laws, with due regard for common sense and their new constituencies.