by
Stephen
Maturen/Getty
Images)
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]
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