Immigration Article of the Day: Immigration Law's Excessive Fines by Nicholas McLean
Immigration Law's Excessive Fines by Nicholas McLean, Michigan Law Review Online (forthcoming 2026)
Abstract
Since the start of the second Trump Administration, the Department of Homeland Security has assessed civil penalties against more than 100,000 people for “willfully” remaining in the United States after final orders of removal. By mid-2026, a staggering amount—more than $84 billion in all—had been imposed on individuals, with many ordered to pay as much as $1.8 million. In constructing this sweeping penalty regime, the Administration has invoked section 274D of the Immigration and Nationality Act, a statutory provision that has been almost wholly unenforced in the decades since it was enacted. Penalties are now being assessed administratively, with limited procedural safeguards, without regard to individuals’ ability to pay, and without taking into account any individualized assessment regarding individual circumstances or culpability. The government has stated that it will “forgive” these penalties for those who “self-deport.”
This Essay examines the Administration’s sweeping regime of immigration fines and considers the constitutional challenges that have been raised against it under the Eighth Amendment’s Excessive Fines Clause. The new penalty scheme, I suggest, evokes a tool of governance with a long and disreputable history in our law: the unpayable economic sanction, used by government to achieve its objectives in an indirect manner. Indeed, such penalty schemes—imposed far in excess of individual ability to pay, and directed at vulnerable and politically disfavored groups—echo the very practices that longstanding Anglo-American protections against “excessive fines” were adopted to prohibit. Yet despite the long history of the Eighth Amendment’s prohibition on the imposition of excessive fines, the modern case law interpreting and applying that clause remains strikingly underdeveloped. As a result, addressing the pending constitutional challenges to the 274D program may well require courts to grapple with significant unresolved doctrinal questions, including the role that a person’s individual economic circumstances ought to play in a court’s assessment of constitutional excessiveness. In addressing challenges to the Trump Administration’s sweeping regime of immigration fines, the courts will have an opportunity to develop a more robust and protective Excessive Fines Clause jurisprudence—one that centers issues of economic hardship and precarity in the constitutional analysis.
