February 2, 2026
Do illegal immigrants have the right to stay in America, or can they be deported ? Of course, they do not have such a right. Furthermore, as Brion McClanahan of the Abbeville Institute has pointed out, the Supreme Court has in numerous cases ruled that control of immigration is a federal matter, not one under state jurisdiction. You can argue that these precedents are wrong, but that is the law as it exists today. That being so, if "progressive" Governors like Tim Walz of Minnesota oppose the removal of illegal immigrants, they cannot block immigration enforcement within their state. They have no obligation to use state officials to help ICE agents, and if demonstrators against ICE attack agents or try by force to free those they take into ICE custody, state officials must arrest them.
For some conservatives, that is the end of the matter: the demonstrators are a raging mob, who have only themselves to blame if some of them are injured or killed Thus, writing in The Spectator, Dan McCarthy, says: "The Border Patrol officer or officers who shot [Alex]Pretti might have been wrong. But the presumptions of civilization are on law enforcement's side. If there is violence between officers and someone else, officers have the superior right to use force. The attempt to negate laws through mob actions and systematic harassment campaigns - which is what the anti-ICE activists have been conducting - are wrong in themselves, whether or not the laws are entirely right. This is because, as everyone knows, America is not a totalitarian society, elections do matter and immigration enforcement is necessary for any country. It's a basic form of the rule of law; it is not fascism."
I believe that this view is entirely mistaken. The ICE agents have acted in an arbitrary and violent way, inimical to the rule of law, as if they were free to injure or even kill anybody who gets in their way. Jim Bovard aptly compares the killing of Alex Pretti to the killing of Vikki Weaver at Ruby Ridge by an FBI sniper. He says: "On Saturday, federal agents in Minneapolis killed protester Alex Pretti, shooting him in the back 10 times after they had taken away the pistol he legally carried. White House Deputy Chief Stephen Miller quickly settled the issue: 'A would-be assassin tried to murder federal law enforcement and the official Democrat account sides with the terrorists.' A few hours after Pretti was killed, I commented on Twitter X: 'How many of the Trump supporters cheering the killing of the Minneapolis demonstrator today would also cheer for the FBI sniper killing Vicki Weaver in her cabin door at Ruby Ridge in 1992?' This outraged plenty of Trump supporters but the parallels between the federal killings in 1992 and on Saturday are striking. Trump supporters insisted there was no comparison between Pretti's death and Vicki Weaver because Weaver was unarmed. But Vicki Weaver had a.380 gun on her side under her sweater when the FBI sniper blew her head off as she was holding her 10-month-old baby. Neither she nor Pretti was brandishing before getting shot to death by the feds.
"Trump officials justified killing Pretti because he had a pistol-even though vast numbers of conservatives have brought pistols and rifles to protests in recent years. Similarly, the Rule of Engagement for FBI snipers was 'any armed male adult observed in the vicinity of the Weaver cabin could and should be killed.' In a federal appeals court ruling, Judge Alex Kozinski denounced that rule as a new 'James Bond Agent 007 standard for the use of deadly force' against American citizens.
"After Pretti was shot more than ten times, DHS Secretary Kristi Noem said he was a 'domestic terrorist' who sought 'to inflict maximum damage on individuals and to kill law enforcement.' Noem announced that Pretti 'approached Border Patrol officers with a 9 mm semi-automatic pistol. The officers attempted to disarm this individual, but the suspect reacted violently." Videos of the killing show that Pretti had a cell phone in his hand, not a gun, before federal agents knocked him down and began beating and pistol-whipping him. Trump's DHS considers videotaping agents to be the equivalent of a hostile attack that justifies a violent federal response...Some Trump supporters declared that Pretti deserved his fate because he intentionally chose to place himself in deadly peril by purportedly assaulting federal agents. In both the Minneapolis and Ruby Ridge cases, federal officials claimed a right to preemptively kill their targets and then cover-up the killings.
"After killing Pretti, DHS officials seized cell phones of bystanders and blocked Minnesota state law enforcement officials from conducting any investigation at the crime scene. DHS's apparent coverup was so brazen that a Trump-nominated federal judge issued an emergency order on Saturday near midnight ordering DHS not to destroy further evidence. It remains to be seen how much honest evidence will be permitted to be disclosed. Unlike most police departments, most ICE and Border Patrol agents don't wear body cameras to videotape their shootings. Congressional Republicans, following the Trump White House lead, blocked efforts by Democrats to require those federal agents to wear body cams.
"Many Trump supporters would vigorously condemn the FBI killing of Vicki Weaver nowadays. But the issue is not how many people disapprove of her killing after the coverup collapsed...Trump officials are already dropping a cloak of sanctimony over the latest federal shooting in Minneapolis. According to Border Patrol boss Gregory Bovino, Pretti was only there to kill people, and it was a 'good job for our law enforcement in taking him down before he was able to do that.' This standard would preemptively justify killing any individual who the feds label as a threat after shooting him. Will we ever learn the Rules of Engagement that DHS agents are now using to shoot American civilians ? Will we ever see the possibly panicked texts and emails from DHS bosses in Minnesota to the Trump White House about another bloody public relations fiasco ? Will we ever see the evidence that federal agents seized after Pretti was perforated ? How can anyone who is paying attention approve of Pretti's killing despite all the false and far-fetched federal claims regarding his demise ? How can freedom survive if so many Americans blindly believe any proclamation by government officials and political hacks?"
There was nothing illegal about Pretti bringing a gun to an anti-ICE demonstration. Gun rights groups emphasize that Pretti was legally permitted to carry a firearm under Minnesota law, and that carrying a gun into a demonstration or protest is not prohibited by state law. Minnesota does not have a specific ban on firearms at protests, so carrying a weapon - even a loaded one - was lawful for someone with a valid carry permit. The Second Amendment protects an individual's right to bear arms even while attending a demonstration, and that right doesn't disappear just because someone is observing or recording law enforcement activity. This is a foundational point for many gun-rights organizations responding to the controversy. They pushed back strongly against federal officials' comments - for example, an Assistant U.S. Attorney's post saying people approaching law enforcement with a gun could be "legally justified" targets drew criticism. Groups like the National Rifle Association (NRA) called such statements "dangerous and wrong," asserting that mere lawful possession shouldn't be equated with justification for use of deadly force. Others, including the Gun Owners of America, reiterated that federal authorities must not infringe on the right to bear arms while protesting.
Under the U.S. Constitution, Congress has primary authority to make immigration law. Article I gives Congress the power to establish a uniform rule of naturalization and regulate borders. The executive branch (including agencies like ICE) is tasked with enforcing those laws. This distinction is central to debates about executive actions that significantly alter how immigration law is applied. A president cannot simply rewrite immigration law; he can issue executive orders and set enforcement priorities, but those must be rooted in statutes passed by Congress. Scholars often point to the Administrative Procedure Act (APA), separation of powers principles, and the nondelegation doctrine when assessing whether aggressive executive enforcement oversteps congressional authority.
A number of scholars emphasize that immigration lawmaking belongs to Congress, and they are skeptical of executive actions that effectively reshape immigration policy through enforcement choices. Peter Margulies, who teaches at Roger Williams University, is a leading immigration law scholar. He argues that broad enforcement initiatives risk collapsing the distinction between enforcing and making law. He is critical of executive immigration policies (under both parties) that bypass Congress and rely on sweeping discretion. He emphasizes that the Administrative Procedure Act (APA) limits and the need for statutory grounding. Shoba Sivaprasad Wadhia, who teaches at Penn State, is an expert on prosecutorial discretion in immigration. While she accepts some executive discretion, she has warned that unbounded discretion can undermine rule-of-law constraints and congressional supremacy. She is critical of opaque enforcement surges and mass operations lacking clear standards.
Other scholars focus on ICE's reliance on administrative warrants. David A. Martin, who teaches at the University of Virginia, is a former DHS General Counsel and respected constitutional scholar. He has written critically about ICE's use of administrative warrants for home entries, emphasizing the constitutional vulnerability under the Fourth Amendment and argues that immigration enforcement does not create a Fourth Amendment "exception."
Stephen Legomsky, who teaches at Washington University in St. Louis, is one of the most cited immigration law scholars and is a longtime critic of aggressive interior enforcement tactics. He emphasizes that civil immigration violations do not justify criminal-style enforcement methods and has warned that ICE practices often erode due process norms.
Other scholars argue that large-scale federal immigration operations can encroach on state sovereignty and effectively turn immigration enforcement into general policing.
Ilya Somin, who teaches at George Mason University, is a libertarian constitutional scholar. He is critical of both sanctuary-state coercion and aggressive federal immigration enforcement and argues that federal immigration enforcement cannot override anti-commandeering principles. He is skeptical of using immigration authority as a pretext for broad domestic policing. Erwin Chemerinsky, who is the dean of the UC Berkeley Law School, is one of the most prominent constitutional scholars in the U.S. He has argued that immigration enforcement must still respect federalism limits and individual constitutional rights and frequently criticizes executive actions that evade congressional checks or judicial oversight.
Other scholars focus on equal protection and discriminatory enforcement, often linking ICE practices to broader constitutional concerns. Jennifer Chacón, who teaches at UC Berkeley, has written extensively on immigration enforcement. She is critical of executive-driven enforcement strategies that lack transparency and accountability.
Kevin R. Johnson, who teaches at UC Davis, is a former dean and immigration law scholar. He is a longtime critic of immigration enforcement policies that undermine equal protection and due process, especially for lawful residents and citizens mistakenly targeted.
Let's do everything we can to ensure that the rule of law and Constitutional government is restored. That is vastly more important than expelling illegal immigrants.