Regulatory Constitutional Law: Protecting Immigrant Free Speech Without Relying on the First Amendment

The Supreme Court has long deprived immigrants of the full protection of substantive constitutional rights, including the right to free speech, leaving undocumented immigrants exposed to detention and deportation if they earn the government’s ire through political speech. The best remedy for this would be for the Supreme Court to reconsider its approach. This Essay offers an interim alternative borrowed from an analogous problem that arises under the Fourth Amendment. Under the Constitution, the Supreme Court has indicated that illegally obtained evidence may be suppressed in a removal proceeding only if the Fourth Amendment violation was “egregious.” Yet, some circuit courts have indicated that a regulation protecting immigrants from unjustified arrests and interrogations offers an autonomous, and potentially stronger, basis for suppressing evidence, suggesting that regulations may protect constitutional rights even where the Supreme Court has declined to fully enforce the Constitution.

Using the Fourth Amendment example as an analogy, this Essay will propose regulations that would protect immigrants from selective prosecution for engaging in free speech, thus filling a gap left by the Supreme Court.