The Volokh Conspiracy
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Warrantless Home Searches Under the Alien Enemies Act?
Trying to figure out a reported new legal argument.
In the New York Times, Devlin Barrett reports that "Trump administration lawyers 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, according to people familiar with internal discussions."
From the story:
The disclosure reflects the Trump administration's aggressive view of presidential power, including setting aside a key provision of the Fourth Amendment that requires a court order to search someone's home. * * * *
Last week, Mr. Trump quietly signed a proclamation invoking the law, known as the Alien Enemies Act of 1798. It grants him the authority to remove from the United States foreign citizens he has designated as "alien enemies" in the cases of war or an invasion.
His order took aim at Venezuelan citizens 14 or older who belong to the Tren de Aragua gang, and who are not naturalized or lawful permanent residents. "All such alien enemies, wherever found within any territory subject to the jurisdiction of the United States, are subject to summary apprehension," the proclamation said.
Senior lawyers at the Justice Department view that language, combined with the historical use of the law, to mean that the government does not need a warrant to enter a home or premises to search for people believed to be members of that gang, according to two officials familiar with the new policy. * * *
The curious part of the story is that it's hard to tell what the government's legal theory is. What specifically do they think suspends the usual Fourth Amendment warrant requirement?
The closest I can figure combines the references to "historical uses of the law" and a passage near the end of the story that references this 2024 report on the Alien Enemies Act. A sentence in that report says that, during World War II, being an alien enemy as designated by the Act was used "as sufficient cause for warrantless house raids in search of contraband." The footnote cited as support states:
Commission on Wartime Relocation and Internment of Civilians, Personal Justice Denied (Seattle: University of Washington Press, 1997), 62; and John DeWitt, Commanding General, to James Rowe, Assistant Attorney General, Re: Alien Enemy Control Requirements, January 5, 1942, 6, https://digitalassets.lib.berkeley.edu/jarda/ucb/ text/cubanc_35_1_00257389ta.pdf.
Maybe the idea is that the Alien Enemies Act allowed warrantless searches in World War II, and therefore does so today? Let's take a look at the two sources. The 1997 book is not available electronically, so I'm not sure (at least yet) what it says. The 1942 document is here, but it seems to say something pretty different from what the report says it says. Although the 2024 report appears to claim that it authorized warrantless searches, the relevant passage seems to be a discussion of how to draft particularized search warrants to search homes:
Putting aside that an executive branch practice authorized in the early days of World War II does not exactly establish a constitutional precedent today, this a discussion of how to write particular warrants rather than an authorization of warrantless searches.
Now wait, you're thinking: This passage seems to say that the U.S. Attorney can authorize warrants. So that would mean that the Executive can get warrants from the Executive, which isn't much of a warrant requirement at all. Maybe that's the warrantless search that the Trump Administration has in mind?
That's possible. With that said, that practice would seem to run afoul of Coolidge v. New Hampshire, 403 U.S. 443 (1971), handed down long after World War II. It turns out that, in New Hampshire, back in the 1960s, anyone could be a Justice of the Peace empowered to issue warrants. Police officers could be Justices of the Peace, as could prosecutors. Coolidge involved a murder investigation in which investigators obtained a search warrant from the state Attorney General in his capacity as Justice of the Peace. Coolidge held that the warrant was invalid:
Without disrespect to the state law enforcement agent here involved, the whole point of the basic rule so well expressed by Mr. Justice Jackson [that warrants had to be issued by judicial officers, not law enforcement-- ed.] is that prosecutors and policemen simply cannot be asked to maintain the requisite neutrality with regard to their own investigations-the 'competitive enterprise' that must rightly engage their single-minded attention. * * * *
We find no escape from the conclusion that the seizure and search of the [item searched here] cannot constitutionally rest upon the warrant issued by the state official who was the chief investigator and prosecutor in this case. Since he was not the neutral and detached magistrate required by the Constitution, the search stands on no firmer ground than if there had been no warrant at all.
I can imagine a few other possible theories that the story might be referencing, but I'll wait to hear more reporting (if any is forthcoming) before getting into them. In the meantime I just wanted to flag that it wasn't at all clear, at least to me, what argument the Trump Administration lawyers have in mind.
As always, stay tuned.
