Reducing the Deportation’s Harm by Expanding Constitutional Protections to Functional Americans (Beth Caldwell, 37 Whittier L. Rev. 355, 2016)

This paper draws upon primary research conducted with deportees in Mexico to highlight the need to extend constitutional protections to deportation proceedings. Deportation is particularly cruel for those who have become integrated into American society. People are permanently separated from their spouses and children, and from the only country that they have ever considered to be their home. This experience often triggers anxiety, depression, and suicidal ideation.

The decision to exclude deportation cases from most constitutional protection was highly contested in 1893 when the doctrine was created in the case of Fong Yue Ting v. United States. At the time, Justice Field’s dissent expressed concern that exempting deportation cases from judicial review would imbue “brutality, inhumanity, and cruelty” into the deportation cases. Soon after, the Court found that basic procedural due process protections apply to deportation proceedings, subjecting them to some level of judicial review. But to this day, substantive due process rights remain unprotected in immigration cases. Similarly, the Eighth Amendment’s limit on cruel and disproportionate punishment has been held inapplicable to deportation cases because deportation is deemed to be a legitimate exercise of Congress’s plenary power, rather than a punishment.

The “brutality, inhumanity, and cruelty” Justice Fields worried about in 1893 now characterizes United States deportation laws. In order to guard against the inhumane consequences that often flow from deportation, noncitizens with strong ties to the United States should be entitled to robust constitutional protections when they face deportation. Part One sets the stage for this legal argument. It explains the need for constitutional protections, and highlights the “brutality, inhumanity, and cruelty” of the current system, presenting research about the trauma people experience following deportation, especially when they have long-term ties to the United States. Here, I focus on deportation to Mexico because I have conducted research on the consequences of deportation from the United States to Mexico. Part Two discusses the plenary power doctrine, which has historically allowed deportation law to function with extremely limited constitutional intervention. Part Three argues that constitutional rights should apply to deportation cases, especially for people with strong ties to the United States who are, in the words of Cristina Rodriguez, “functional Americans.” Applying these constitutional limits to the government’s power in deportation cases would promote a more humane, less cruel, rule of law. It concludes by recommending specific criteria that could be used to determine who qualifies as a “functional American” for purposes of extending constitutional protections in deportation proceedings.