Five Things to Know about the Laken Riley Act

Haga Clic para la Versión en Español.

The Politics of Scapegoating Threaten Constitutional Protections

The Laken Riley Act is a manifestation of cynical politics. The majority is manipulating a personal tragedy to scapegoat immigrants. In reality, there is no correlation between immigration status and criminality. This bill is not a public safety measure, but rather an attack on established constitutional protections that would do nothing to keep communities safe if enacted into law.

5 things to know about the Laken Riley Act:

1.  The bill would hobble the executive branch’s ability to make immigration policy, whether a Democrat or Republican is in the White House. The bill guarantees states standing to sue the federal government over a breathtakingly wide array of immigration-related actions ranging from detention and visa policy to detention and release decisions in individual immigration cases. Federal agencies, under Democrat or Republican control, would face litigation at every turn from states governed by the opposing political party. Administrations would likely stop even trying to issue new immigration policies when faced with endless litigation over every single memo and regulation.
2. The bill is a recipe for chaos in the federal courts – chaos the Constitution intended to avoid. The doctrine of “standing” is a constitutional doctrine (based on Article III’s requirement that a case or controversy exist for the federal courts to intervene) that guarantees courts are not wasting their time on disputes where there is no potential harm for the courts to ameliorate. Yet the Laken Riley Act provides blanket standing regardless of whether a state has any interest whatsoever in the case or policy being challenged. Without the ability to dismiss for lack of standing, the federal courts would immediately be drowning in immigration lawsuits.
3. The bill is duplicative – the federal government already has the authority to detain all people facing deportation proceedings. The bill amends the “mandatory detention” provision of federal immigration law to apply to undocumented people who are charged with, arrested for, or convicted of any theft-related offense. But the Department of Homeland Security already has statutory authority to detain any undocumented person facing deportation proceedings including those charged with a criminal offense. What the bill does is apply “mandatory detention,” requiring detention without any opportunity to even request release on bond. In practice, this means the bill would require the government to detain an undocumented mother arrested on charges of shoplifting diapers without even granting her a bond hearing, for the duration of her deportation proceedings.
4. Requiring no-bond detention solely on the basis of a charge or arrest raises serious due process concerns. Prolonged detention without access to an individualized bail or bond hearing is an extreme measure in American law. Nearly all people facing criminal charges in the criminal justice system are entitled to an individualized bond hearing, even on charges as serious as murder. This bill is particularly extreme because it applies mandatory immigration detention solely on the basis of an arrest or charge, risking the prolonged detention of people innocent of the charges brought against them. These provisions also exacerbate racial disparities because Black and Brown people are arrested at disproportionately high rates throughout the United States.
5. The bill would significantly disrupt prosecutors’ ability to proceed with criminal charges. Under this bill, immigration authorities would be required to take a person into immigration custody after a theft related arrest, even if a criminal judge found them to present no risk and released them on bail. The person would then be stuck in immigration detention with no ability to request release, even to attend their criminal court hearing on the underlying charges. Prosecutors already frequently face significant challenges in getting people transported from immigration custody to criminal court for ongoing proceedings; the bill would compound this problem greatly.