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Duke Journal of Constitutional Law & Public Policy






When President Obama took office in 2009, Congress through appropriations linked the U.S. Department of Homeland Security’s (DHS) funding to “maintaining” 33,400 immigration detention beds a day. This provision, what this Article refers to as the bed quota, remains in effect, except now the mandate is 34,000 beds a day. Since 2009, DHS detentions of non-citizens have gone up by nearly 25 percent. To accommodate for this significant spike over a relatively short period of time, the federal government has relied considerably on private prison corporations to build and operate immigration detention facilities.

This Article takes a comprehensive look at the Congressional immigration detention bed quota. It details its legislative history, and the relationship between the quota and private prisons in the immigration detention system. It situates the provision in a conversation about quotas generally, both in the law enforcement context and also in relation to the significance of quotas in U.S. immigration law historically. The Article then examines the bed quota through the lens of foundational as well as present-day jurisprudence on immigration detention and the Due Process Clause of the Fifth Amendment of the U.S. Constitution. It also analyzes the quota through international human rights law, particularly the protections related to arbitrary detention and vulnerable migrants. The Article concludes with policy considerations that caution against Congress imposing the immigration detention bed quota.



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