Will ICE Use the Alien Enemies Act To Enter Homes Without Warrants?
Already this year, the agency has allegedly conducted a warrantless raid in Newark and several warrantless arrests in the Midwest.
Just a few days after President Donald Trump took office in January, Immigration and Customs Enforcement (ICE) carried out a workplace raid in Newark, New Jersey, that alarmed local officials and immigrant advocates.
ICE agents detained "undocumented residents as well as citizens, without producing a warrant," said Newark Mayor Ras J. Baraka in a January 23 statement. "This egregious act is in plain violation of the Fourth Amendment of the U.S. Constitution, which guarantees 'the right of the people [to] be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.'"
The Trump administration could be gearing up for broader warrantless immigration enforcement. Lawyers for the administration "have determined that an 18th-century wartime law the president has invoked to deport suspected members of a Venezuelan gang allows federal agents to enter homes without a warrant," The New York Times reported on Thursday, which would effectively set "aside a key provision of the Fourth Amendment that requires a court order to search someone's home."
The "18th-century wartime law" in question is the Alien Enemies Act of 1798, which gives the president broad authority to detain and deport noncitizens during times of war. Trump invoked the law earlier this month to justify deporting alleged members of Tren de Aragua, a Venezuelan gang. Members of the gang had "unlawfully infiltrated the United States and are conducting irregular warfare" against Americans, Trump explained in an executive order.
"All such Alien Enemies, wherever found within any territory subject to the jurisdiction of the United States, are subject to summary apprehension," the order continued. Senior Justice Department lawyers believe that language and the Alien Enemies Act's historic applications mean "the government does not need a warrant to enter a home or premises to search for people believed to be members of that gang," the Times reported.
The administration should think twice about acting on that interpretation, given the fallout over last weekend's Alien Enemies Act–related deportations. An ICE official's sworn affidavit "paint[ed] the picture of a Trump administration and ICE management that were determined to deport as many people as possible, no matter how tenuous the connection to Tren de Aragua or any crime," wrote Reason's Eric Boehm. Reports on the deportees suggest that many may have been sent to a Salvadoran prison for extremely flimsy reasons, including innocuous tattoos. It would've been far better for the government to assess those grounds for deportation in court hearings rather than whisking people out of the country and potentially making grave, life-altering mistakes.
"Currently, immigration agents without a warrant can do little more than knock on a door and ask to come in," noted the Times. "The Fourth Amendment applies to everyone in the U.S., not just individuals with legal status," Christopher A. Wellborn, president of the National Association of Criminal Defense Lawyers, told the paper. Removing that protection would be an "abuse of power that destroys our privacy, making Americans feel unsafe and vulnerable in the places where our children play and our loved ones sleep."
Earlier this week, a lawsuit filed by the National Immigrant Justice Center and the American Civil Liberties Union's Illinois chapter alleged that ICE violated the rights of 22 people, in many cases using improper warrants or no warrants at all. Under a 2022 settlement in a class-action lawsuit, which applies in several Midwestern states, "ICE officials can conduct a warrantless arrest if they believe an individual is likely to escape but they must provide evidence," noted WBEZ Chicago. The lawsuit alleges that ICE detained a U.S. citizen for over 10 hours without documenting the arrest, conducted "warrantless and often violent arrests" of nine individuals, and produced warrants after arresting several of the plaintiffs.
As it turns out, fulfilling campaign trail promises of "the largest deportation operation in the history of our country"—and doing it at Trump's desired speed—requires cutting some corners. In reality, the mass deportation plan is not solely (or even primarily) about deporting actual security risks. The administration has had to resort to moves such as removing temporary protected status designations to create more removable immigrants. Expanding warrantless immigration enforcement might help toward numerical deportation goals, but it's also likely to generate more rights abuses (and lawsuits) in the process.
