Not that there’s much of the Constitution that ICE seems either care about or recognize, but two whistleblowers have revealed that ICE has put into writing the position that its own administrative warrants are all that’s needed to break into homes to make arrests. As long as they have a Form I-125, signed by an immigration judge, an administrative judge who works for the Justice Department, that’s good enough.

Federal immigration officers are asserting sweeping power to forcibly enter people’s homes without a judge’s warrant, according to an internal Immigration and Customs Enforcement memo obtained by The Associated Press, marking a sharp reversal of longstanding guidance meant to respect constitutional limits on government searches. The memo authorizes ICE officers to use force to enter a residence based solely on a more narrow administrative warrant to arrest someone with a final order of removal, a move that advocates say collides with Fourth Amendment protections and upends years of advice given to immigrant communities.

Is it good enough?

DHS’s position is that they authorize ICE to enter homes based on Form I-205 orders everywhere except in the Central District of California—with that exception due to a 2024 ruling in that district, Kidd v. Mayorkas.  Unfortunately, however, the memo does not include any legal analysis.

The standard response is “hell no, they can’t do that.” Orin Kerr, however, doesn’t see it that quite so clearly.

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.

And isn’t that so obvious as to be the end of discussion? Not necessarily.

We don’t know the specific basis for DHS’s disagreement with that position.  But if I had to guess, I would guess that they read Abel v. United States, 362 U.S. 217, 230 (1960). differently than did Judge Wright.  In Kidd, above, Judge Wright says that Abel expressly declined to address whether administrative warrants are Fourth Amendment warrants.  Technically, that’s true.  But if you read Abel, Justice Frankfurter is saying that the Court won’t hear the defendant’s argument that administrative warrants are not valid Fourth Amendment warrants because the defendant did not make the argument below—and Frankfurter drops a bunch of hints that he would be inclined to say that they are valid.

So does ICE have a point, that an administrative warrant issued by an administrative judge who is not a “neutral magistrate” as the Fourth Amendment would require is close enough?

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.

And indeed, since Abel was decided in 1960, there have a great many Supreme Court decisions that seem to overwhelmingly require a judicial warrant to enter a residence, even if the specific issues were not addressed. But then, as Orin notes, he’s speculating about the legal basis for ICE’s otherwise facially unconstitutional memo. There may be no claim of legal basis at all, and merely an assertion of authority because they want to.

I would think this is especially the case if you accept the unitary executive theory, in which what various immigration officials do in the executive branch is all ultimately part of the “executive Power. . .  vested in a President of the United States of America” and should not be thought of as independent decisions of immigration judges or other immigration officials.

Or it may be because the “traditional view” would result in the traditional remedy, suppression, which is almost invariably inapplicable here such that any constitutional violation just doesn’t matter.

Some may be thinking, well, if that’s the approach the DHS is adopted, surely it can be challenged in court, right?  But this is less than obvious to me.  It may be that there are ways of challenging the DHS policy under the judicial review doctrines of administrative law, like the APA. I don’t know.

People arrested by ICE under orders of removal aren’t taken to court for prosecution, They’re put into ICE detention facilities until they’re put on a plane and shipped to wherever. Where is the opportunity to challenge the illegal entry? What use is the remedy of suppression of evidence when the outcome is a flight to South Sudan? There being no criminal prosecution, there is no opportunity to challenge and no remedy, even if the remedy would be worthless to deportees.

But can’t someone sue the feds for violating their Fourth Amendment rights in a civil action?

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.

Being a bit more practical than an academic, it would appear that the ICE memo instructing its officers to enter people’s homes without a warrant is, to be a bit of a traditionalist, completely and flagrantly unconstitutional. And it doesn’t matter because there is nothing either an alien or an American citizen whose home was violated can effectively do about it.

This will seem weird to a lot of people.  And it is pretty weird, I think. Back when the Fourth Amendment was enacted, the most fundamental remedy for an unlawful government entry into your home was a civil suit for trespass against the officers.   The Fourth Amendment was about whether there was an affirmative defense to liability for trespass, all against the backdrop of preexisting tort liability under trespass and other torts. These days, though, you need a cause of action.  And the Supreme Court has basically said that courts shouldn’t provide that cause of action—even though, historically, courts provided the trespass tort.  It’s all kind of a complicated mess, and I’ll spare you the details, but the basic idea is that the federal government generally can’t be sued for damages for violating the Fourth Amendment.

It’s not that ICE is right or has any lawful authority to break into you home, but it’s that the Supreme Court has effectively killed any remedy for doing so. They win by default.