Foundations

Immigration Tests the Rule of Law From Both Sides

Skipping enforcement and denying due process both threaten the rule of law.

Published October 1, 2026 · 3 min read

A state driver's license issued to someone in the country illegally and a home entered by federal agents without a warrant from a judge look like different problems. They are not. In each case, officials have decided that a political goal matters more than the law as written.

Immigration is an extreme test of the rule of law. Deeply held moral beliefs and real economic interests collide with laws that limit who may enter the country. How a country handles an issue this charged shows whether its legal system follows the law or follows political pressure.

The rule of law demands that laws be enforced consistently and that every person be given due process. Due process means fair procedures and a real chance to be heard before the government acts against someone.

The first failure is refusing to enforce the law. Prosecutors have to choose which cases to pursue, because their resources are limited. That everyday judgment is legitimate. Letting millions enter the country illegally, year after year, is not that. It is a policy decision to set the law aside.

That decision tells immigrants and citizens alike that obeying the law depends on who is in charge. A law ignored that way loses its legitimacy.

Some states and cities go further. They issue driver's licenses and identification cards that give people here illegally an appearance of legality, or they bar local police from cooperating with federal immigration officers. Some officials have even encouraged citizens to obstruct federal officers, or obstruct them directly.

Here the law draws a clear line. The federal government generally cannot force states and cities to help enforce federal law, and courts have upheld most sanctuary policies for that reason. Local officials may decline to help. But, they may not get in the way.

Obstructing federal officers is a federal crime. It also goes against the Constitution's supremacy clause, which makes federal law the highest law of the land.

The second failure runs the other way. The Fifth Amendment says no "person," not merely no citizen, shall be deprived of life, liberty, or property without due process of law. In Zadvydas v. Davis (2001), the Supreme Court held that this protection reaches everyone in the United States, "whether their presence here is lawful, unlawful, temporary, or permanent."

Given this, the government breaks the law when it arrests people without a reasonable basis to believe they are here illegally. The same goes for entering homes and businesses without a warrant from a judge, denying people a chance to prove they are here legally, deporting them without a hearing, or holding them indefinitely.

How much process is owed to someone here unlawfully is debated. But, it is not nothing.

The strongest objection is moral. Many Americans believe the country owes more to people seeking a better life than current law allows. That is a serious argument, and the place to make it is in Congress, which has left immigration reform unfinished for decades. Congress's failure does not give presidents, governors, or mayors the right to rewrite the law themselves.

The stakes reach well beyond the border. A government that skips enforcement when it dislikes a law, or denies due process when it dislikes a person, has made individual rights depend on who holds power. Consistent enforcement and real due process keep immigration a legal system rather than a political battleground.

Whichever direction the next shortcut runs, the question to ask is the same. Is the law being applied, or is it being chosen?

Principle at stake

The rule of law asks for two things; that the law is enforced consistently, no matter who holds power, and that every person receives due process. The Fifth Amendment protects every "person," not merely every citizen, from losing life, liberty, or property without due process of law. Officials who dislike an immigration law must change it through Congress, not set it aside or rewrite it themselves.

Facts & figures

Fifth Amendment: no "person," not merely no citizen, may be deprived of life, liberty, or property without due process of law.
Zadvydas v. Davis (2001): the Supreme Court held that due process reaches everyone in the United States, "whether their presence here is lawful, unlawful, temporary, or permanent."
Most sanctuary policies: upheld by courts, because the federal government generally cannot force states and cities to help enforce federal law.
Obstructing federal officers: a federal crime, and contrary to the Constitution's supremacy clause.
Decades: how long Congress has left immigration reform undone. That failure does not give presidents, governors, or mayors the right to rewrite the law.

Key talking points

→The federal government generally cannot force states and cities to help enforce federal law, which is why courts have upheld most sanctuary policies, but obstructing federal officers is a federal crime.
→Choosing which cases to pursue because resources are limited is ordinary discretion, while letting millions enter the country illegally year after year is a policy decision to set the law aside.
→The Fifth Amendment protects every "person," not only citizens, and in Zadvydas v. Davis (2001) the Supreme Court held that this includes people whose presence in the country is unlawful.
→Arresting people without a reasonable basis, entering homes without a warrant from a judge, and deporting people without a hearing all break the law.
→Congress has left immigration reform undone for decades, but that failure does not give presidents, governors, or mayors the right to rewrite the law themselves.

Full source paper: The Invisible Scaffolding

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