Treatment of Refugees, Asylum Seekers, and Other Migrants

The treatment of border crossers has received significant news coverage recently. In particular, the question of how the United States may treat migrants who claim to be fleeing persecution—especially migrants entering the United States with children—has inspired intense debate. For example, U.S. Senator Kamala Harris visited the Otay Mesa Detention Facility50 near San Diego in June 2018 and called the treatment of detainees “a crime against humanity that is being committed by the United States government.” As one might expect, Immigration and Customs Enforcement and Department of Homeland Security officials have disagreed with such assessments and have defended current practices as lawful exercises of the executive’s authority to enforce laws at the border. Immigration law and refugee policy are beyond the scope of this course. Students might nonetheless consider whether the Court’s decisions on how the Fourth Amendment restricts (or does not restrict) executive discretion with respect to searches and seizures at the border shed light on what other border enforcement tactics are and are not (and should be or should not be) lawful.