One of the primary motivations for the American Revolution was the hated “writs of assistance.” These were open-ended powers for British customs agents to search homes, shops, and properties.
Founding Father James Madison wrote that when colonists began to challenge the warrantless searches and seizures, “American Independence was then and there born.” Madison’s passion for protecting individuals from government overreach inspired the Fourth Amendment to the U.S. Constitution, which protects individuals from unreasonable searches and requires probable cause for warrants to be issued. The subsequent Fifth Amendment guaranteed due process for detained individuals.
These standards are bedrock principles of American democracy that have stood since they were ratified in 1791, but they are now being tested in West Virginia and across the country with the wholesale roundups being conducted by agents with the U.S. Immigration and Customs Enforcement (ICE).
Fortunately, U.S. District Court judges here have so far held true to the Constitution, while questioning the government’s tactics. As our Brad McElhinny reported, “Federal judges in West Virginia have questioned whether law enforcement had probable cause for the initial (traffic) stops in immigration cases that led to jail and the courtroom.”
In the case of two non-citizens stopped along I-77 last month, Judge Joseph Goodwin wrote, “notably, the record contains no information regarding the justification of the initial traffic stops conducted by the state police.”
In that case and others, the government was consistently unable to show why individuals were taken into custody. Federal Judge Irene Berger wrote in one case, “Everyone in the United States is potentially at risk if officers are free to detain and incarcerate people without having to justify detention.”
That sentiment was echoed by federal Judge Thomas Johnston in another case. “If the government may simply seize someone without due process, there is no check on its ability to seize anyone.” He went on to write, “The law is clear: all persons present within our country are entitled to due process.”
Yes, the individuals in these cases entered the country illegally, but that typically is a matter of civil and not criminal enforcement unless there are outstanding criminal warrants. In the West Virginia cases that came before the courts, the individuals were cooperating with the U.S. immigration system and had hearings pending.
The hearings before the West Virginia judges have resulted in the individuals who were arrested and detained being released.
The American ideal, codified in the Bill of Rights and reinforced by over two centuries of practice, begins with a guarantee of liberty and protections for individuals—including non-citizens—from government overreach. Even someone in the country illegally enjoys the benefits of due process. The U.S. Supreme Court recently upheld that right.
Immigration is a mess. The law is unwieldy, and the system is overwhelmed. Polls consistently show Americans want a secure border and for criminals in this country to be expelled. However, those goals cannot be achieved by trampling on fundamental rights.
In cases so far, U.S. District Court Judges in West Virginia have held true to Madison’s principle and stood as a bulwark against the modern-day version of “writs of assistance.”