Immigration and Customs Enforcement reportedly created an internal memo asserting that its agents can enter people’s homes to make arrests without a judicial warrant. And the memo, we are assured, is extremely chill and very constitutional, which is why ICE refused to widely distribute it and told some of those who did see it that they had to view it in the presence of their supervisor and couldn’t take notes. Nothing suspicious about that!
The Fourth Amendment provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation.” In practice, this has meant that law enforcement needs a judicial warrant to enter private property without permission… barring exigent circumstances, like someone inside being in immediate danger. A judicial warrant, as the name suggests, involves a judge signing off on it. By contrast an “administrative warrant” has someone in the executive branch sign off on it.
The May 12 memo (at Exhibit 1), disclosed through Whistleblower Aid and signed by Acting ICE Director Todd Lyons, announces that agents can forcibly enter homes based solely on administrative warrants. If Homeland Security has gotten a removal order — which could be from an official as low on the pecking order as an immigration judge — then an immigration officer can go ahead and issue an I-205 authorizing agents to go get the person… and now, for the first time, they claim that form is all it takes for the government to overcome the Fourth Amendment. So, to be clear, these aren’t even issued by immigration judges… they’re from the ICE equivalent of desk sergeants:
Although the U.S. Department of Homeland Security (DHS) has not historically relied on administrative warrants alone to arrest aliens subject to final orders of removal in their place of residence, the DHS Office of the General Counsel has recently determined that the U.S. Constitution, the Immigration and Nationality Act, and the immigration regulations do not prohibit relying on administrative warrants for this purpose.
As an attorney, you know you’re on the right track when your conclusion runs counter to practice “historically” and involves “recently” realizing the Constitution has a meaning that no one else ever thought of in all the years since 1791. You can be even more confident in your conclusion when you don’t cite A SINGLE CASE for this proposition. And the cherry on top is when your bosses make sure the memo addressed to “All ICE Personnel” stays so hidden that it can only be found where the government keeps its darkest secret documents like Area 51 or Mar-a-Lago’s pool locker.
According to the whistleblowers, ICE pointedly did not revise their actual training materials. So anyone who looked would see ICE telling agents that they can’t enter a home without a real warrant while behind-the-scenes instructing their people… the exact opposite.
And so we have Department of Homeland Security lawyers issuing novel constitutional law opinions hopped up on Red Bull and Chick-fil-A on one side and anyone who has ever watched 10 minutes of Law & Order on the other. Professor Orin Kerr, who is enjoying the busiest week in Fourth Amendment news in years, weighs in:
The standard view has been that administrative warrants can’t authorize home entry because they’re executive branch orders, and the executive branch can’t be in charge of deciding whether to give itself a warrant. Under Payton v. New York, 445 U.S. 573 (1980), the government needs an arrest warrant to enter a home to make an arrest. But Payton refers to a “judicial officer” inserting his judgment “between the zealous officer and the citizen,” and the immigration officer who signs a Form I-205 is not a “judicial officer.” That’s the traditional thinking.
The whole point, as the Supreme Court has explained in cases like Coolidge v. New Hampshire (1971), is that “prosecutors and policemen simply cannot be asked to maintain the requisite neutrality with regard to their own investigations.” This concern is supercharged when the administration has publicly embarked on an immigration judge purge, threatening anyone exercising independence and replacing them with stooges and rendering suspect even the underlying removal orders behind these warrants.
Professor Kerr hypothesizes that DHS attorneys might be — because, again, they cite zilch for this conclusion — relying on dicta from 1960 for this. And if they are, he’s not particularly persuaded:
If that’s the DHS argument—and I’m just speculating about that—I think the problem on the merits is that there’s been a lot of water under the bridge since Justice Frankfurter’s opinion in Abel. Coolidge from 1971 and Shadwick from 1972 settled the idea that a warrant requires a neutral and detached magistrate. Payton from 1980 settled that a judicial warrant is needed for entry. To go back to the 1960 opinion in Abel, and to read its dicta as binding without considering the Supreme Court’s later holdings in Coolidge, Shadwick, and Payton, seems pretty problematic.
So it’s probably “wrong” but maybe “not frivolous.” Cold comfort for folks having their doors rammed in.
And doors are definitely getting rammed. The AP report notes that ICE officers broke through the front door of a Liberian man’s Minneapolis home on January 11, wearing tactical gear armed with rifles and an administrative warrant.
DHS spokesperson Tricia McLaughlin defended the policy by saying everyone served with these warrants has “had full due process and a final order of removal from an immigration judge.” Which might be true! ICE has been repeatedly caught mistakenly nabbing U.S. citizens. But let’s give the DHS propaganda minister the benefit of the doubt and assume they’ve only busted into houses with administrative warrants when they’ve been sure someone inside is subject to a removal order… it’s still beside the point. The due process question is separate from the Fourth Amendment question of whether the government can break into your home without taking it to an independent judge. Customarily lawyers learn that before they set out to vibe-check the Bill of Rights.
Not that anyone can do much about it, according to Kerr:
It seems worth flagging, though, that this is another place where the Supreme Court’s gradual cutting back on the scope of the Bivens remedy—the civil action against federal agents for violating the Constitution, including the Fourth Amendment—may make the most obvious form of judicial review unavailable. Even if the policy is unconstitutional, as it seems to be, a person who is illegally searched probably can’t sue ICE for violating their constitutional rights.
Yet another reminder that the courts have more or less written abusive government agents a blank check. The system is working exactly as intended. Just not for any of us.
But just because it’s practically unlikely to be enforced doesn’t make it legal. The Constitution does not contain a secret footnote that says, “Unless immigration, lol.”
No wonder they wanted to keep this thing hidden.
Immigration officers assert sweeping power to enter homes without a judge’s warrant, memo says [AP]
Can ICE Enter a Home to Make an Arrest With Only an Administrative Warrant? [Lawfare]
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
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