Q&A – Can Ex Post Facto Laws Be Used to Speed Up Trump’s Deportation Plans? - Driven By Braman Motorcars
Each day I feature a listener question sent by one of these methods.
Email: brianmudd@iheartmedia.com
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Today’s Entry: Today’s Q&A was submitted via talkback and is asking about whether immigration laws could be considered ex post facto enabling retroactive charges against offenders.
Bottom Line: I appreciate this next level question in the ongoing debate about immigration laws and deportation procedures as the Trump administration continues to butt up against a relentless effort by the Left, including activist judges, seeking to block President Trump’s deportation plans. Before addressing the question, let’s take a step back to breakdown what an ex post facto law is.
If the term ex post facto is foreign to you, there’s a good reason for it. It is. Ex post facto is Latin for “from a thing done afterward”, which makes sense since we’re talking about retroactive laws. When applied to the legal realm, ex post facto laws that retroactively make something that was previously legal, illegal, opening offenders up to potential criminal charges for crimes committed previously. The constitution places significant limitations on the use of these laws so as to attempt to prevent political retribution, for example, while at the same time allowing a window of opportunity to attempt to right a potential wrong that was perhaps overlooked within the legal system previously.
The Supreme Court most recently ruled in favor of the limited use of ex post facto laws in 2003 leading to what I believe is the most recent ex post facto law that’s been passed. It’s one that was especially high profile and hits home locally – The Adam Walsh Child Protections and Safety Act of 2006 - named for the son of John Walsh. The law established the National Sex Offender Registry, which made all convicted sex offenders allowed back into society to register with an online database, which wasn’t part of their original sentences. So about whether this type of policy may be applied to illegal immigration cases...the answer is only when there is what’s defined as a criminal offense. And illegal immigration isn’t considered a criminal defense. Here’s the breakout:
Illegal immigration is primarily treated as a civil offense. Here's a clear breakdown:
- Civil Offense:
- Unlawful Presence: Entering the U.S. without authorization (e.g., crossing the border without inspection) or overstaying a visa is generally a civil violation under the Immigration and Nationality Act (INA).
- Criminal Offenses:
- Illegal Entry: entering or attempting to enter the U.S. at a place other than a designated port of entry is a federal misdemeanor
- Illegal Reentry: Reentering the U.S. after being deported or removed is a felony
- Other Crimes: Related activities, like smuggling aliens, using fraudulent documents, or identity theft to gain employment
So, the bottom line is this... Most immigration violations lead to civil consequences (deportation) rather than criminal prosecution. However, the government can choose to pursue criminal charges in cases like illegal entry or reentry, often depending on enforcement priorities.
So, in answer to today’s question, the answer is that yes, ex post facto laws could be passed to target illegal immigrants, but only for what are already deemed in the courts to be criminal behaviors. Hence the term you commonly hear reported, “criminal illegal immigrants” for those who’ve committed criminal offenses once inside of the United States. It’s a technically correct term.
Over the past decade anywhere from 95-99% of all illegal immigration cases have been handled as civil violations. And btw, for the purpose of speeding up deportations – this is a good thing. If every deportation case were a criminal case – the process to arrive at a conclusion would be far greater than it is in the civil process where it’s handled administratively.