Looking at the Actual Laws – and Lawlessness – of the anti-ICE Protests, Part 1 (posted 2/4/26)

Many people have filled the air with claims about our immigration laws and the legitimacy of the anti-ICE protests.  Most of them claim to know the law, and to have it on their side. 

In this column and the next, I’m going to lay out the relevant laws and legal principles as I understand them, to try to counter a lot of what I think are false statements coming from the open borders and anti-ICE left.

Regular readers will know that I’m not a law-talkin’ guy (“Obscure Lionel Hutz references to lawyers on the Simpsons for $100, Alex”), but rather a humble retired English professor.  But I’ve followed a lot of legal writing and SCOTUS cases, and taught writing for pre-law students, so I think I’ve got at least a basic, informed amateur’s understanding of this topic.

Of course, I welcome any corrections or extra information from any actual lawyers among my readership.

I’m going to go from big picture to the small, starting with the Constitution and our national immigration laws.

On this topic, the most relevant parts of the constitution are the Supremacy Clause, which appears in Article 6, and the First Amendment.  The supremacy clause established that whenever a state law on an issue that affects the other states conflicts with the national law as embodied in the Constitution, the Constitution trumps the state law. 

Famous examples would be when Ike or Truman called out the National Guard into southern Democrat states who had passed Jim Crow laws infringing on the rights of black Americans.  The Guard forced blacks’ access to schools and other segregated businesses and institutions, because constitutional law trumped the state Democrats’ racist laws.

One question I’ve had for 10 years or more is why cities and states have been allowed to declare themselves to be “sanctuary” locations, and thus defy the federal government and break our immigration laws?  That would necessarily make them insurrectionists, wouldn’t it?  (Remember when the Democrats used to pretend to take that VERY seriously?)  

The supremacy clause clearly forbids sanctuary cities, and I’m not sure why Trump and conservatives in the GOP haven’t pushed back on this issue, and stopped that open defiance of federal law.

I’ve written elsewhere that at the very least, the feds should stop all federal funds from going to sanctuary cities, to force their compliance with our laws.  If the feds could cut off all federal highway funds to force states to lower their speed limits to 55 in the 1970s, they can certainly cut off funds to end illegal sanctuary policies.   Especially when you consider that lower speed limits hadn’t existed before, and higher limits didn’t break any laws – which local sanctuary ordinances clearly do. The feds just wanted the states to change their behavior, and used the power of the purse to force them to do so. 

The First Amendment’s guarantees of freedom of speech and religion are also crucial in the ongoing disputes.   The freedom of religion is more rarely contested, because until recently, most protestors weren’t stupid enough to intentionally disrupt worship services.  (Rumors that most of the protestors cannot tolerate being in the presence of a cross, lest they burst into flames and run shrieking into the darkness have not been confirmed.)

That is, until Don Lemon and a couple of radical activists led a platoon of morons into the church in Minneapolis a few weeks ago.  The charges against them are an easy legal call – always with the caveat that they get a judge or jury who feels bound to actually rule according to the law.  (Sadly, we can no longer take that for granted anymore.)  They violated many laws that day, starting when they forcibly entered the church, disrupted the service and interfered with the congregants’ freedom of worship, and they have no substantive legal defense.

Freedom of speech is the elephant in the room when it comes to the legality of protests.  Protestors of all political persuasions routinely claim constitutional approval for any and all actions they feel like taking, but that’s not what the First Amendment grants. As with many contentious constitutional issues, the essential distinctions often hang on very specific wording.

In this case, the amendment establishes “the right of the people PEACEABLY to assemble, and to petition the Government for the redress of grievances.”  Obviously, the capital letters are mine, and highlight the crucial point: peaceful protest is allowed and protected; violent protest is not.

A lot of con law jurisprudence has grown out of defining the kinds of protests that are disallowed.  The first (and easiest) was violent protests.  “Violence” is defined by various laws that establish various types and levels of criminal behavior, from property damage to assaults, throwing objects, spitting on people, etc.

Other restrictions developed over time to codify legal and logical definitions.  One such set of limitations involve “time, place and manner” restrictions.  “Time” encompasses limits to protests in the middle of the night or early morning.

 “Place” limits where protests can occur: you can’t go into private property (like a church or business), or a secure military base or other government facilities. Often the government can establish specific protest zones that balance the right of protesters to be heard and the right of others not to have the protests forced on them.  You also can’t protest in front of a judge’s home or a courthouse. 

I know: Technically, the scumbags who harassed Kavanaugh and other SCOTUS justices at their homes were breaking the law, and many activists protesting inside or right up against courthouses are too.  Enforcement, please!

“Manner” covers many issues, such as noise restrictions and decibel levels; capping the number of protestors allowed into a venue; requiring permits to allow road closures or other accommodations; restrictions based on threats to safety (e.g. protests can’t legally spill into roads and block traffic, or create overcrowding that could result in trampling or crushing injuries, etc.).  Protestors also can’t harass their targets, or interfere with legal activities such as going into a place of business, or carrying out legitimate governmental responsibilities such as investigating a crime, or detaining, questioning or arresting someone.

After reading that list, you’re thinking what I am: the anti-ICE mobs have been constantly violating a ton of those laws.  They routinely use constant, ear-splitting whistles, which can induce physical pain and injury, and are necessarily psychologically disorienting and aggravating.  They regularly block traffic, and box LEOs vehicles in.  Their entire raison d’etre is to illegally interfere with any enforcement of our immigration laws.    

The only possible justification I can see for this systematic and blatantly illegal behavior would be if our immigration laws were somehow illegitimate, not democratically passed, or violative of the Constitution.  And that is also just as clearly NOT the case.

I’ve written a previous column summarizing the overall development of our immigration laws from the Founding to the 1960s.   If you’d like to see the details, I posted that column on 4/2/25, and you can find it by scrolling back through my archives on the right side of the screen.

To summarize my summary… The first major immigration law was the Naturalization Act of 1790, and the two major laws in the next century were the Immigration Acts of 1882 and 1891.  My main takeaway from analyzing those acts is that even though we didn’t yet have a vast, bloated welfare system, we were still picky about who we let in, and we purposely chose those who would clearly benefit America.  (We rejected those who were physically or mentally sick, criminals, and those who would be financial burdens on the country, for example.)  In the early 20^th century, after decades of booming immigration, we tightened our laws and dramatically decreased the number of immigrants from the ‘20s through the early ‘60s.

But in the 1960s and afterwards, we began to allow more people in, and our goals for immigration underwent an ideological drift to the left.  But initially, we did partially maintain our early, conservative focus on enlightened self-interest, prioritizing immigrants who would be most likely to contribute to our society.  We offered many visas and green cards to allow seasonal workers and students to come in temporarily.  The goal was that this would be a win-win; the seasonal worker immigrants would get better wages and working conditions than they could get in their home country, and the students would get an education that increased their skills and value.  

All of them would be expected to leave the country when their temporary status expired, but the cream of the crop of both white- and blue-collar immigrants would have a chance – after careful vetting – to apply for citizenship, and bring added value to America.

But even as that was going on, the leftist march through the institutions produced more intellectuals and government leaders who took a darker and darker view of America. They saw us as exploitative colonizers and capitalists who had victimized the Third World, so it was only fair that we generously take in more and more immigrants from the Third World, almost as a form of indirect reparations.

They felt guilty and selfish about choosing immigrants based on how they could benefit America, and they moved more toward allowing people in based on “compassion” and “empathy.”  The poorer and more dysfunctional your country was, the better the liberal “saviors” felt about letting you in.   

And, of course, race played a larger and larger role.  Because: leftism. 

Since previous waves of immigration had been drawn predominately from Europe, those immigrants had been mostly white. Which made the ascendant lefties feel really icky, and white-guilt-y.  So they started preferentially admitting more non-white people.  Which dove-tailed nicely with the fact that non-whites tend to vote heavily Democratic. 

To top that off, the leftist attraction to multiculturalism and disdain for traditional/conservative American culture meant that this latest wave of immigration broke from all earlier waves in one crucial way: we no longer insisted that immigrants assimilate to our culture.  Because our leftist betters know that all foreign cultures are morally superior to ours, it would be bigoted and xenophobic of us to expect them to adapt to us.  We need to accommodate them, and allow them to set up defiantly non-assimilating outposts of their own native cultures within our borders.

Annnnnddddd… we get the Muslim call to prayer blasted out of loudspeakers daily in Dearborn, Michigan; angry, racist Latinos burning the American flag and waving the Mexican flag in LA; and piratical fraudster Somali Muslims creating Mogadishu-St. Paul.

This leftist drift on immigration produced an addictive mix of power and pleasures which lefties found irresistible.  They could grow their own political power by admitting millions of morally superior racial victims who will vote for them forever, while also damaging their hated political enemy (conservative whitey!), and simultaneously experience the near-orgasmic pleasure of self-righteously virtue signaling while profiting from the whole mess.       

By the time Biden got control, they had weakened our immigration so much that they were emboldened to drop all pretenses – along with the border – and wave unvetted illegal immigrants in by the millions, for four long years.

Okay, that’s a lot of background.  Next up: I’ll look at the alleged non-criminal status of most illegal immigrants (spoiler alert: it doesn’t exist), and rebut the MSM claims about the legality of the anti-ICE protests one by one.

Hamas (and Trantifa) delenda est!

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