Shortly after Donald J. Trump came into power, then-White House Press Secretary Sean Spicer explained that the President intended to “take the shackles off” government agencies seeking to deport immigrants. Gone were the days of restraint; agencies like U.S. Immigration and Customs Enforcement (“ICE”) and the U.S. Border Patrol would be free to “follow the law” by any means necessary.1
Those of us who have had the privilege of defending the rights of immigrants in this country know that the power that the government has wielded against immigrants has always been vast. President Barack Obama deported more than three million immigrants during his tenure.2 The vast deportation machinery was built long before President Trump came into office, and threatens to last long after he is gone.
But those of us who have had the privilege of defending the rights of immigrants in this country also know that “the law” includes more than the smattering of statutory provisions and regulations that give the government in this, or any, administration the power to deport and otherwise harm immigrants. “The law” includes the U.S. Constitution. It includes statutory and regulatory protections, both federal and state, that constrain government power. It includes ethical rules that guide those who work within the legal system. These laws—the laws that protect the rights of the people—are not “shackles” to be taken off. They are the very foundation upon which any semblance of justice in this country rests.
This issue of the New York University Review of Law & Social Change is dedicated to immigrant rights. The articles in this issue trace the limitations that the law places on the government’s power—and those that would assist them—to do harm. As government agents seek to separate immigrant parents from their children, to enter courthouses to incarcerate unsuspecting immigrant litigants, to prevent immigrant parents from obtaining their children’s birth certificates, or to surveil immigrants using the same companies that produce the tools upon which lawyers are supposed to rely, where does the law stand? And what should we, as lawyers, do to uphold those laws when the government will not?
The four articles in this issue present solutions—solutions that take the shackles off immigrants, and ensure that we hold those who would do harm to immigrants accountable under the law.
DOJ guidance for mentally impaired detainees in immigration removal proceedings should be amended to provide counsel at earlier signs of incompetence.
Voting rights advocates should explore section 11(b) of the Voting Rights Act as a vehicle to combat voter intimidation.
An evidentiary privilege to protect workers' confidential communications from disclosure in federal and state court proceedings would support unions.
Labor organizing privilege is not a magic bullet that will secure the rights of workers to organize and collectively bargain. Employers will continue to resist the efforts of their workers to organize.