Can ICE Enter a Home To Make an Arrest With Only an Administrative Warrant?

A tentative take, on both the rights and the remedies.

The Associated Press reports:

Immigration officers assert sweeping power to enter homes without a judge's warrant, memo says

WASHINGTON (AP) — 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.

The memo is here.  The specific subject is what are known as Form I-205 Warrants, which are signed by immigration officials and not regular judges.  As I read the memo, 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.

This raises a big question: Can ICE enter a home to make an arrest without a judicial warrant?

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.

That thinking is captured by Judge Wright's reasoning in the Kidd v. Mayorkas opinion.  Judge Wright was addressing the broad category of administrative warrants, which included the subcategory of Form I-205 warrants, and here's what he wrote:

A judicial "arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within," Payton, 445 U.S. at 603, 100 S.Ct. 1371, and "consistent with the Fourth Amendment, immigration authorities may arrest individuals for civil immigration removal purposes pursuant to an administrative arrest warrant issued by an executive official, rather than by a judge," Gonzalez v. U.S. Immigr. & Customs Enf't, 975 F.3d 788, 825 (9th Cir. 2020). However, as the Court has previously noted, (see Order re Mot. Dismiss, ECF No. 58), the Supreme Court has expressly declined to consider whether an administrative warrant satisfied the requirements for "warrants" under the Fourth Amendment. See Abel v. United States, 362 U.S. 217, 230, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960).

Rather, case law supports the need for independent judgment in issuing warrants. See, e.g., Shadwick v. City of Tampa, 407 U.S. 345, 350, 92 S.Ct. 2119, 32 L.Ed.2d 783 (1972) ("The warrant traditionally has represented an independent assurance that a search and arrest will not proceed without probable cause…. Thus, an issuing magistrate must … be neutral and detached."); Coolidge, 403 U.S. at 449, 91 S.Ct. 2022 ("[T]he whole point of the basic rule … is that prosecutors and policemen simply cannot be asked to maintain the requisite neutrality with regard to their own investigations.").

Here, not all case administrative warrants are reviewed by an independent officer. There are fifty-two immigration officer categories expressly authorized to issue arrest warrants for immigration violations, as well as "[o]ther duly authorized officers or employees of [DHS] or the United States who are delegated the authority." 8 C.F.R. § 287.5(e)(2). For example, a Form I-205 (Warrant of Removal) is reviewed by an ICE supervisor who signs on behalf of the Field Office Director and not by any judge (immigration or otherwise). (Decl. Anne Lai ISO Pls.' Opp'n DMSJ Ex. 12 ("Giles Dep.") 39:23-40:24, ECF No. 492-3.) Because the administrative warrants at issue here lack the independent assurance guaranteed by the Fourth Amendment, they do not immunize Defendants' conduct. This is also consistent with ICE training materials, which affirm "that administrative warrants do not authorize entry into a dwelling without consent." (DSUF 25.)

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.  Here's the beginning of the discussion from Abel:

The claim that the administrative warrant by which petitioner was arrested was invalid, because it did not satisfy the requirements for "warrants" under the Fourth Amendment, is not entitled to our consideration in the circumstances before us. It was not made below; indeed, it was expressly disavowed. Statutes authorizing administrative arrest to achieve detention pending deportation proceedings have the sanction of time. It would emphasize the disregard for the presumptive respect the Court owes to the validity of Acts of Congress, especially when confirmed by uncontested historical legitimacy, to bring into question for the first time such a long-sanctioned practice of government at the behest of a party who not only did not challenge the exercise of authority below, but expressly acknowledged its validity.

Frankfurter goes on to say that it would be a different story if the immigration process here was really about a criminal investigation; so long as it's really about immigration, it's on much more solid ground.

You can see that reading of Abel in United States v. Malagerio, No. 5:20-CR-154-H-BQ-1, 2021 WL 3030067, at *1 (N.D. Tex. Feb. 22, 2021), which involved going to a person's home with an administrative warrant, knocking on the door, and ordering the person to come out—and then arresting them when they did.  There, Judge Hendrix interpreted Abel as supporting entry under an administrative warrant:

Relevant here, Supreme Court precedent indicates that officers may enter an arrestee's home to execute an arrest pursuant to an administrative warrant. See Abel v. United States, 362 U.S. 217, 234, 237, 239–40 (1960). . . .

Malagerio has not pointed the Court to any precedent stating that administrative warrants do not grant officers authority to conduct an arrest in the home. Additionally, the Court has not located any such authority. Therefore, considering Abel, which condoned an arrest in a home pursuant to an administrative warrant, the Court rejects Malagerio's first argument that the good-faith exception does not apply.

Malagerio also argues that the officers did not act with an objectively reasonable good-faith belief that their conduct was lawful because DHS regulations and training manuals recognize that an administrative warrant does not grant authority to enter a home. Dkt. No. 42 at 3–6, 8–10. Even if the Court defers to the DHS regulations and training materials to assist in its determination of whether the good-faith exception applies, those regulations do not prevent the conduct that the officers engaged in during the arrest. Officers did not enter Malagerio's RV before they arrested him. Id. at 164. Additionally, the regulations that Malagerio cites do not prevent the type of conduct that occurred here—knocking on the door of a residence and commanding the resident to come out.

The Fifth Circuit affirmed without reaching that question of whether entry into the home would be allowed—as the officers stayed outside, and never actually entered—saying "we need not decide whether an administrative warrant may be used to arrest an alien in his home. We leave that important question for another day."

If I had to guess at what the DHS legal conclusion is that is referred to in the memo, I would guess that DHS is looking at the district court rulings in Malagerio and Kidd and saying that the question is sufficiently unsettled (especially after Malagerio) that DHS can take the position that Malagerio is right and Kidd is wrong—or at least will do that outside the district where Kidd was decided.

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.

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.  Given the focus in Coolidge, Shadwick, and Payton on the fundamental role of warrants in inserting a judicial check on the executive, it seems out of place to say that this can be satisfied by the executive checking itself.  Even if the I-205 Warrant was signed by the immigration official based on an immigration judge's removal order, that removal order is an order from the President's executive branch.  From that perspective, the traditional thinking that executive-branch warrants cannot satisfy the Fourth Amendment judicial warrant Payton test seems persuasive.

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. It's not my area, so I will leave that to others.

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.

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.

That general rule seems to apply to cases like this, or at least there's precedent saying so.  Consider the Fourth Circuit's ruling in Tun-Cos v. Perrotte, 922 F. 3d 514 (4th Cir. 2019), the introduction of which tells you pretty much what you need to know:

Nine Latino men, who lived in areas of Northern Virginia that were home to many residents of Latino ethnicity, commenced this action against several Immigration and Customs Enforcement ("ICE") agents. They seek money damages to redress the ICE agents' alleged violations of their rights under the Fourth and Fifth Amendments, alleging that the ICE agents (1) stopped and detained them without a reasonable, articulable suspicion of unlawful activity; (2) invaded their homes without a warrant, consent, or probable cause; and (3) seized them illegally. To state a cause of action for damages, they rely on Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), which held that the victim of a Fourth Amendment violation by federal officers had an implied constitutional claim for damages.

The ICE agents filed a motion to dismiss, challenging the plaintiffs' reliance on Bivens and also asserting qualified immunity. While the district court assumed that the plaintiffs' action presents a "`modest extension' in a `new context' for the application of a Bivens remedy," it denied the ICE agents' motion, concluding that a Bivens remedy "should be recognized in this case." It also denied the ICE agents qualified immunity.

Applying the Supreme Court's recent jurisprudence on Bivens actions, we reverse, concluding that a Bivens remedy is not available in the circumstances of this case. Where there is no statute authorizing a claim for money damages, "it is a significant step under separation-of-powers principles" for a court to impose damages liability on federal officials. Ziglar v. Abbasi, ___ U.S. ___, 137 S.Ct. 1843, 1857, 198 L.Ed.2d 290 (2017). In such cases, "[t]he question is who should decide whether to provide for a damages remedy, Congress or the courts?" Id. at 1857 (cleaned up). "The answer most often will be Congress." Id. Indeed, in the course of repeatedly declining to provide a Bivens remedy in recent years, the Supreme Court has now made clear that "extend[ing] Bivens liability to any new context or new category of defendants" is highly "disfavored." Ashcroft v. Iqbal, 556 U.S. 662, 675, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (cleaned up). We thus conclude that, because the plaintiffs seek to extend Bivens liability to a context the Supreme Court has yet to recognize and there are "special factors counselling hesitation in the absence of affirmative action by Congress," Abbasi, 137 S.Ct. at 1857 (cleaned up), the plaintiffs' action for damages should be dismissed.

It's always hard to offer a take on a legal argument when you have to speculate about what the legal argument is, so my take on this is tentative.  But if I had to summarize my current thinking, it seems to me that the DHS policy is likely wrong in light of Coolidge, Shadwick, and Payton, although the DHS position is not frivolous in light of Abel as interpreted in Malagerio—and the trickier issue may be actually getting a merits ruling on the issue in court in light of the absence of remedies due to the Supreme Court's gradual cutting back on Bivens remedies. Or at least that's my tentative take without actually getting to see the DHS legal analysis, and with the caveat that I don't know the administrative law remedies that may be available.

As always, stay tuned.

Note: This post was cross-posted at Lawfare.

Comments

[John Hawkinson]

As to challenges to this policy, if we accept for the sake of argument that there's no Bivens remedy, why are that and administrative law the only obvious challenges?

In particular, why isn't habeas available as a remedy, to challenge the arrest as being invalid (rather than the search)?

[Orin S. Kerr]

Good question, John. Here's what the Supreme Court said in New York v. Harris about the remedies for Payton violations:

"Nothing in the reasoning of [Payton] suggests that an arrest in a home without a warrant but with probable cause somehow renders unlawful continued custody of the suspect once he is removed from the house. There could be no valid claim here that Harris was immune from prosecution because his person was the fruit of an illegal arrest. United States v. Crews, 445 U. S. 463, 474 (1980). Nor is there any claim that the warrantless arrest required the police to release Harris or that Harris could not be immediately rearrested if momentarily released. Because the officers had probable cause to arrest Harris for a crime, Harris was not unlawfully in custody. . . . "

[John Hawkinson]

Thanks. This is not my area, but the Harris analysis seems to be about probable cause, and how there was probable cause to arrest Bernard Harris for murder regardless of the validity of the search.

But presumably in a challenge to a warrantless ICE arrest, there is no probable cause for ICE to believe a crime was committed, but rather a civil immigration violation. (Let's assume that this is one of the many many immigration cases where ICE is not alleging illegal entry, but rather overstaying a visa or even just we-don't-want-to-adjudicate-your-asylum-case-anymore-even-though-we-paroled-you-into-the-interior-last-week.)

[Greg J]

They've got a final deportation order, which means the crime of that illegal being in the US is occurring and ongoing.

Sorry, children, but the fact that you want open borders doesn't make US immigration law disappear.

https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1325&num=0&edition=prelim
§1325. Improper entry by alien
(a) Improper time or place; avoidance of examination or inspection; misrepresentation and concealment of facts
Any alien who (1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or (2) eludes examination or inspection by immigration officers, or (3) attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, shall, for the first commission of any such offense, be fined under title 18 or imprisoned not more than 6 months, or both, and, for a subsequent commission of any such offense, be fined under title 18, or imprisoned not more than 2 years, or both.
(b) Improper time or place; civil penalties
Any alien who is apprehended while entering (or attempting to enter) the United States at a time or place other than as designated by immigration officers shall be subject to a civil penalty of-
(1) at least $50 and not more than $250 for each such entry (or attempted entry); or
(2) twice the amount specified in paragraph (1) in the case of an alien who has been previously subject to a civil penalty under this subsection.

Civil penalties under this subsection are in addition to, and not in lieu of, any criminal or other civil penalties that may be imposed.

[Sarcastr0]

occurring and ongoing

Apart from not being English, that's not really what that law says, which is about the act of entering or attempting to enter the US. Nothing about continual presence after that entry being an additional offense.

[Zayphar]

Case v Montana is just another weakening of 4th Amendment protections. 'Exigent Circumstances' seem to mean that cops can make up any BS excuse to enter a residence without a warrant and no one will do anything to gainsay it. The 4th Amendment is almost dead. Worrying about a new type of abridgement caused by immigration magistrate warrants seems a little pointless.

[anon.ymous]

In my opinion, the Supreme Court is setting up to say that unconstitutional acts by federal officials are acts that are not "acting within the scope of his office," and therefore Westfall Act immunity to state tort law doesn't apply to unconstitutional acts. Now they can remove to federal court, but you can still bring state tort claims against federal officers for what would be unconstitutional acts. And entering a home without a judicial warrant would be unconstitutional if done by a federal officer, therefore it was not within the scope of his office and only done in their personal capacity.

It might also be the case that they rely upon 28 U.S.C. § 2679(b)(2)(A) to say a trespass tort against a federal official for a violation of the Fourth Amendment doesn't get Westfall Act immunity. I think this provision was meant to apply to Bivens style actions, but if they are effectively eliminating Bivens, they might re-interpret this clause to apply to state tort law against unconstitutional acts.

[Orin S. Kerr]

Both possible, agreed.

[John F. Carr]

I think that should be the law, the government can not immunize agents from liability for constitutional violations. At most it can indemnify them. Which five votes on the Supreme Court do you see for that principle?

[TwelveInchPianist]

This is probably the most straightforward way to make police more accountable.

But I don't see a justification for allowing governments to indemnify their agents for Constitutional violations either.

[John F. Carr]

Here is a policy argument I have heard offered:

Your seven figure judgment against the guy who left you needing lifetime medical care is not going to be satisfied by executing on the assets of a mid-level government official.

There are arguments both ways. You want government employees to have an incentive to behave and you want victims of government employees to receive compensation. Massachusetts has a cap on government indemnification for some claims. When private insurance is available, a plaintiff will often settle for $1 million policy limits rather than go to trial to get a $2 million judgment of which only $1.5 million will ever be paid. In practice a coverage limit will protect the insured a little beyond its face value.

[jb]

Seems like you could resolve this tension by the government creating some sort of fund to make victims whole once they're recovered all they can from the bad guy. This protects victims while also making sure there's accountability for the bad actors.

[jb]

If the government is commanding them to violate the Constitution (as here), indemnification seems reasonable. I agree that in general it does not.

Having said that, it seems like a harder argument to make that they're not operating within their official capacity when they're behaving how they've been told.

Most of the discussion here seems to operate around a legal framework where it assumes agents have gone rogue, but in this case the government has adopted the policy that ICE should just ignore the Fourth Amendment. That should inspire a different set of discussion (and remedies).

[anon.ymous]

Can the leadership ever lawfully command a lower level official to violate the Constitution? It seems to me that lower level official has a duty to disobey any such order. Its not the tax payers that should suffer, but the leader that issued the unconstitutional order.

[F.D. Wolf]

On this question, the case that immediately came to my mind was indeed Abel v. United States, 362 U.S. 217 (1960), as I happened to be discussing it with someone recently in a different context.

Abel was a Soviet spy, convicted of espionage and sentenced to 30 years. The Court, in a 5-4 decision along ideological lines, upheld the conviction. (Abel would only serve four years, as he was exchanged for American U-2 pilot Capt. Francis Gary Powers, who had been shot down over the Soviet Union during a spy mission).

Abel had been arrested by INS agents in his hotel room, pursuant to administrative immigration warrant, for being an alien illegally present in the United States. (This was almost certainly a pretext for an espionage investigation). INS agents seized several items from his room. The next day, with the hotel's permission, an FBI agent seized more items from the room. The main issue before the Court was whether those seized items were properly introduced in Abel's espionage trial, but Abel did argue that the administrative warrant was insufficient under the Fourth Amendment.

Prof. Kerr notes Judge Wright's opinion:

However, as the Court has previously noted, the Supreme Court has expressly declined to consider whether an administrative warrant satisfied the requirements for "warrants" under the Fourth Amendment. See Abel v. United States, 362 U.S. 217, 230

So, if we travel to page 230 of Abel, we read:

The claim that the administrative warrant by which petitioner was arrested was invalid, because it did not satisfy the requirements for "warrants" under the Fourth Amendment, is not entitled to our consideration in the circumstances before us. It was not made below; indeed, it was expressly disavowed. Statutes authorizing administrative arrest to achieve detention pending deportation proceedings have the sanction of time. It would emphasize the disregard for the presumptive respect the Court owes to the validity of Acts of Congress, especially when confirmed by uncontested historical legitimacy, to bring into question for the first time such a long-sanctioned practice of government at the behest of a party who not only did not challenge the exercise of authority below, but expressly acknowledged its validity.

That reads to me like, "We don't need to decide that question, but if we were deciding it, we would hold the administrative immigration warrant satisfies the "warrant" requirement of the Fourth Amendment."

The majority opinion in Abel was written by Justice Frankfurter, joined by Clark, Harlan, Whittaker, and Stewart. The dissent was written by Justice Brennan, joined by Warren, Black, and Douglas. Which group do you imagine is more in line with the thinking of the majority of the current Court membership?

[Stepped Reckoner]

The Abel case, including the higher court review, was depicted coherently albeit incompletely in Steven Spielberg ‘s 2015 flick BRIDGE OF SPIES, with Tom Hanks playing Abel’s lawyer. The Coen brothers helped punch up the script. Mark Rylance won an Oscar as Abel. Small world.

[ah....Clem]

The DHS's practicallegal argument is that they can just go ahead and do it; the worst that can happen is maybe someone with access to legal representation can file a suit which will take years to wind its way through the courts. Meanwhile, they can just keep on doing it because courts' wings have been clipped.

As Prof Kerr points out, civil action against federal agents for violating the Constitution, is a tough nut to crack.

So, in practice, DHS and ICE can violate the 4th with impunity and there's not a goddamn thing anybody can do about it.

[David Nieporent]

So, in practice, DHS and ICE can violate the 4th with impunity and there's not a goddamn thing anybody can do about it.

A 2nd amendment remedy?

[Krychek_2]

That thought occurred to me too. There are enough well armed Americans that if ICE starts bursting into people's houses, it's only a matter of time until there are dead bodies, and it's even money whether they will be ICE bodies, homeowner bodies, or both. This is a very dangerous game ICE is playing.

[David Nieporent]

To be clear, while I would experience some schadenfreude if some of these stormtroopers were killed while committing an illegal home invasion, I would not actually advise or encourage anyone to respond that way. The far greater likelihood is that the homeowner or another resident will be killed (see, e.g., Breonna Taylor); and it will just lead to even more violent escalation in tactics by ICE against the next homeowner who they want to terrorize. ("We had to use a rocket launcher without notice.")

[Life of Brian]

Though you had to halfway spoil it with the schadenfreude and by framing your rationale as hypothetical ICE retaliation rather than it just being bad and wrong to shoot LEOs who are doing things you don't agree with, I do sincerely appreciate you circling back around and clearing this up. Seemed a good bit less open to innocent interpretation than "8647" etc.

[John 4]

Are you auditioning for #1 Bootlicker or something? “Doing things you disagree with” is doing a lot of weight-bearing, isn’t it?

[Life of Brian]

Are you auditioning for #1 Bootlicker or something?

Similar to what I just pointed out in the open thread, only someone who just flat doesn't pay attention to the longstanding dynamics of this board would imagine I've ever dreamt of licking David Nieporent's boots. We don't see eye to eye on much, but despite that I thought he did the right thing here and wanted to flag that. Sincerity -- you should try it sometime!

“Doing things you disagree with” is doing a lot of weight-bearing, isn’t it?

Speaking of sincerity, not unless you truly believe the activities we're discussing here somehow justify vigilante shooting of LEOs. Are you really proposing to reinstigate what David just quieted down?

[Krychek_2]

While in general I would agree that it's a bad thing to shoot LEOs, I think if the LEOs in question are trespassing, making armed threats, illegally assaulting people, breaking and entering -- all of which they are doing if they have no right to be there in the first place -- that armed defense of one's home is warranted. Maybe going forward they can get a warrant.

The whole point of the Second Amendment, or so Second Amendment proponents are fond of reminding us, is to protect the citizenry from tyrannical government overreach.

[Life of Brian]

Like the rest of the crowd in this thread, you seem to be skipping over the fact that the people in question are in this country illegally. Even with your inflammatory characterizations of what ICE is doing, I really don't see how, in any scenario, you get to people subject to deportation somehow having the right to shoot LEOs who are there to deport them.

As to "maybe going forward they can get a warrant," how exactly do you see that playing out in real time? If they don't hold the warrant out in front of them while entering the home like they do on TV, you're entitled to shoot them?

[zackthedog]

The Hmong man who was dragged out of his house was a US citizen. The problem here is ICE's propensity to barge in first and ask questions later. Some people feel that puts both ICE officials and US citizens at risk of deadly confrontation.

[Life of Brian]

I wouldn't expect any operation of this magnitude to achieve 100% accuracy all the time, but it seems like this particular anecdote goes to the viability of ReaderY's theory below: whether a citizen living with illegal immigrants in the same house (or maybe even not actually living with them, but having some tenancy interest in the house) somehow "inoculates" the house from entry. I'm not sure why that would be the case any more than it would be for a non-criminal living in the same house as some drug dealers that are subject to arrest.

[Krychek_2]

I wasn't aware that the Bill of Rights only protects people who haven't committed crimes. What other provisions in the Bill of Rights would you say don't apply to criminals? Are they not privileged against self incrimination? Do they not get jury trials? Are they not entitled to counsel?

What you're suggesting is full on fascism.

Sorry, put this comment in the wrong place. It belongs to LOB's comment above in which he argues that the people in the house were criminals.

[Life of Brian]

I'm not sure from your note at the end if this is the comment you were actually responding to -- it sure seems like it fits (with the exception of you apparently misreading what I said about criminals -- that part was an analogy).

Anyway, what we were (or at least I was) discussing here was whether people other than the targets living in the house could somehow preclude otherwise allowable entry directed at those targets. So I see that as exactly the opposite of "full on fascism" -- that's more whether criminals can too-clever a bubble of protection around themselves by lashing themselves to someone who's not a target. Not entirely unlike the infamous example of Hamas hiding weapons caches under hospitals or similar.

[Krychek_2]

The issue is not other people in the house. The issue is ICE entering without a warrant.

[Life of Brian]

Right. Which was actually the broader topic of the thread: whether they actually need a judicial warrant to carry out the deportation of illegal aliens with a final removal order who are holed up hoping they can wait out the agents' time and/or patience.

Other than just another source of sand in the gears to slow down deportations you don't want to happen, what do you see as the actual relevance to the deportation process of that last performative piece of paper?

[Incunabulum]

The Hmong man who was sheltering two violent illegals and who refused to identify himself when asked? And who was returned home once it was ascertained he was an American?

[Sarcastr0]

Alternate facts, eh?

[SRG2]

the people in question are in this country illegally.

Not all of them, Kristi Nöhm's lies to the contrary.

[David Nieporent]

For the record, my comments above were not about LEO's "doing things I don't agree with." There are lots of things LEOs do that I don't agree with, but that are within the bounds of established law. In that case, I generally blame the legislature or the courts. My comments above were about LEOs intentionally doing illegal things to abuse the public and violate their rights. It doesn't get much more police state-y than kicking in people's doors without a warrant.

[Bunny495]

Not sure I am buying the 'even money' argument. ICE agents (even the newer ones) have had firearms training. As a life NRA member who competes in weekly events at the local NRA range and probably puts several hundred rounds down range every month I would not put even money on me going up against a team of ICE agents. ICE gets to choose the time to strike and as one of the recent vids shows hitting when a guy is only dressed in his underwear greatly reduces the chances of an effective defense.

[TwelveInchPianist]

You can't effectively engage four or five guys in a firefight in your underwear? What kind of NRA member are you?

[Krychek_2]

You may be right although David Koresh and his followers managed to kill four law enforcement officers during that raid. And a jury acquitted them of murder.

One thing I do not consider likely is that a jury would have any sympathy for ICE launching an armed invasion of a home without a warrant. Especially jurors in a stand your ground state. The Supremacy Clause would likely override a state stand your ground law, but it would not incline a jury to support what by now is obviously a military occupation.

[Brett Bellmore]

Forget presenting a warrant, the feds never even allowed the Davidians a chance to surrender, they just showed up and opened fire. And one of the feds actually admitted that to a journalist before they all got hauled in to get their stories straight. It was a perfect storm of police misbehavior, and well documented as such.

The Davidians' biggest challenge was the usual one in a "self-defense against cops" case: Finding some way to not be killed and all the evidence destroyed before they could reach a court. The feds did manage to destroy most of the evidence, including things the Texas Rangers testified had been present and accounted for when they got kicked out.

[Life of Brian]

maybe someone with access to legal representation

Worry not, there are hundreds of thousands of bleeding-heart pro bono hours just looking for the latest and greatest anti-administration initiative.

There's not a doubt in my mind that as we speak the eager beavers are honing both the arguments and the rhetoric most calculated to obfuscate the core notion that it's somehow correct that someone who has entered this country illegally and has no right to be here can just sit in their homes and taunt those who are there to remove them from the country because they're "touching base."

[LawTalkingGuy]

Man. You suck.

[Life of Brian]

I'm just beyond shocked that you couldn't scrape up a word to say in defense of people seeking to weaponize our own Constitution against us to prevent their removal from our country that they entered illegally.

[Sarcastr0]

What is there to argue? There's not a doubt in your mind!

You're preemitively mad about stuff you've made up.
And you're mad OTHER people are mad about ICE arresting people without Constitutional predicate.

So yeah, you sure do suck.

[Life of Brian]

And another substance-free vibeposter tags in, this one at least creative enough to wrap his icky feelz with the thinnest veneer of ipse dixit, misconstrual, and mindreading. Delish.

[David Nieporent]

No non-fascist has ever characterized the defense of individual liberty as "weaponizing the Constitution."

[Life of Brian]

No non-sophist has ever characterized people illegally present in this country holing up and taunting law enforcement tasked with ending their illegal presence as "individual liberty."

[David Nieporent]

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

[Life of Brian]

Yup, "the people." ReaderY raised that 13 hours ago, and other than Hobie's fake-AI gambit nobody has even tried to take it on.

[LawTalkingGuy]

Orin already did a pretty good job on the merits so there’s nothing to add other than a personal attack on your character. Lawyers who hate the Fourth Amendment are my least favorite kind of lawyers and people. And I figured you should know that.

[Life of Brian]

I'm heartbroken you've come up with yet another reason not to wike me. Heartbroken.

But seriously, there's actually a rather robust discussion happening downthread about whether 4A protects against detaining illegal immigrants. If you're genuinely comfortable in your position, you might join in rather than hiding behind Orin's skirts and lobbing insults.

[LawTalkingGuy]

There’s no point in arguing my position who views the very fact of arguing about it as illegitimate.

“people seeking to weaponize our own Constitution against us to prevent their removal from our country that they entered illegally.”

There’s no point in discussing Fourth Amendment law with someone like this. So it suffices to rely on one of our country’s leading Fourth Amendment scholars for the merits of the issues and to simply point out that you suck.

[Life of Brian]

Careful, now. The astute reader might end up concluding that you view the very fact of arguing about the scope of 4A law as illegitimate!

[Sarcastr0]

There's not a doubt in my mind that as we speak the eager beavers are honing both the arguments and the rhetoric most calculated to obfuscate the core notion that it's somehow correct that someone who has entered this country illegally and has no right to be here can just sit in their homes and taunt those who are there to remove them from the country because they're "touching base."

This is not an argument about the scope of the 4A.

[Life of Brian]

Only to those whose paycheck almost literally depends on them not understanding the clear-as-day argument that the 4A never was intended to protect illegal aliens from the very government they flouted by inserting themselves into this country without leave.

Because I refuse to believe the dude who long ago voluntarily picked out the moniker Sarcastr0 was somehow thrown off by the actual sarcasm in my delivery of that argument.

[LawTalkingGuy]

Orin already made the points in favor of ICE and in favor of the view that judicial warrants are required. That’s the scope right there. You don’t seem to want to engage in that at all because you are complaining that lawyers are weaponizing constitutional arguments to attack “us.” That’s not someone worth debating the scope of the 4th amendment with.

[Life of Brian]

Look, if you're just doubling down on being an Orin-Kerr-quoting empty vessel, you might at least point out where Orin actually took on the question of whether illegal aliens subject to deportation can/should enjoy 4A protections that stymie that deportation process, rather than just broadly discussing the 4A protections themselves. I just may have overlooked that.

[SRG2]

Apparently, to "weaponize the Constitution" means "to exercise the few rights that they have".

Illegal immigrants are not outlaws, agreed? And the US does have jurisdiction over them, correct?

[not guilty]

"Worry not, there are hundreds of thousands of bleeding-heart pro bono hours just looking for the latest and greatest anti-administration initiative."

Is that as true as everything else you have said, LoB?

[Life of Brian]

If you're picking at the quantity, reported pro bono hours are running northward of 5 million, so a few percentage points of that actually seems like a pretty conservative estimate.

Otherwise, I can't imagine what you're suggesting might be incorrect about that assessment.

[not guilty]

Civil damages suits against law enforcement officers are exceedingly difficult to win, if they come to court at all. The lapse of time between the injury and any actual recovery is quite lengthy.

For suits against officers acting under color of state law, 42 U.S.C. § 1985 at least allows a prevailing party to sometimes recover reasonable attorney fees. For suits against officers acting under color of federal law, there is no such fee shifting provision.

LoB, I believe that you underestimate how unlikely it is for a plaintiff's attorney to expend huge amounts of time, energy and resources that are unlikely to be recouped on behalf of plaintiffs who are largely impecunious.

[Life of Brian]

LoB, I believe that you underestimate how unlikely it is for a plaintiff's attorney to expend huge amounts of time, energy and resources that are unlikely to be recouped on behalf of plaintiffs who are largely impecunious.

In turn, I believe you underestimate the tenacity of BigLaw associates (and sometimes partners) who have an ideological axe to grind, and are happy to grind it to the hilt using the substantial bank of pro bono hours (typically 100-200 a year; sometimes more) for which their firm will fully credit them as if they were working a billable matter at full rack rates.

And recovery often has little to nothing to do with it: like a denial of service attack, litigation expends resources which would otherwise be directed to other activities the ideological darlings don't care for either. The process is the punishment.

[jb]

You know, judicial warrants still exist. So it's possible to deport people who are staying inside their homes and follow the Constitution at the same time. As with all things, this administration is too lazy and/or incompetent to do anything the right way, though.

[Life of Brian]

I'm happy to read statistics to the contrary, but it would surprise me not a little if there's anything remotely close to the amount of available judicial bandwidth needed for individualized, thoughtful consideration of a warrant for the arrest of every single person DHS has already determined to be subject to deportation from this country (or, somewhat less euphemistically, individualized judicial second-guessing of the determinations DHS has already made).

(And that is what you're ultimately asking for, right? You wouldn't be comforted at all by a stack of rubber-stamped warrants, would you?)

[David Nieporent]

I don't know how much judicial bandwidth you think it would take — no, the judge doesn't get to relitigate whether the target is deportable — but if ICE just takes the unheard of tactic of waiting until the target walks outside, it doesn't even need a judicial warrant.

[Life of Brian]

I don't know how much judicial bandwidth you think it would take — no, the judge doesn't get to relitigate whether the target is deportable

Oh, so maybe you DO just want a judicial rubber stamp. My bad. If the judge isn't making any sort of independent determination, the warrant y'all are fervently demanding is just a performative piece of paper.

but if ICE just takes the unheard of tactic of waiting until the target walks outside, it doesn't even need a judicial warrant.

And there you give the game away: you want either 1) a bunch of time expended between ICE and the judiciary getting each onesie-twosie warrant; or 2) one or more ICE agents tied up for hours or days while the targets hide in their houses as instructed by immigrant activist groups. You're just looking for delay from whatever source, to bog down the system and slow the rate of deportations.

[bernard11]

So ICE, like other law enforcement agencies, must deal with limited resources.

IANAL, of course, but I don't think the usual response is to say, "Well, we don't have time to deal with a lot of Constitutional folderol, so we'll just skip all that.

[Guardian253]

CIDs arguably violate the 4th Amendment, but has been upheld as constitutional. A lot of things the administrative state does violate constitutional rights, but people are perfectly okay with it.

[Armchair]

Let's ask a larger question. Are administrative warrants valid at all, for any reason? Why or why not?

They're used for a variety of reasons. Not just ICE. But also by OSHA to do inspections of plants and facilities. By City building inspectors to inspect a building for hazards. By Restaurant health inspectors. By the EPA for environmental violations.

All of these can often use an "administrative" judge (rather than a legislative/Congressionally appointed judge) to issue the warrant. Why are "any" of these valid to violate private property and look for issues, regulation failures, and so on?

[Estragon]

Because the seizure of contents in the home and the person (arrest being the “quintessential seizure”) are afforded the highest level of protection, that is to say the governments interest is typically, absent exigency, seen as lesser. One way to safeguard this is by the intervention of a neutral magistrate. But in the situations you are describing the government’s interest is seen as greater. Less protections afforded when the private interest is burning tires in their backyard or whatever. You may disagree with the current state of the analysis, but the overall method is balancing. You are pointing to a distinction that is not dispositive under the current framework.

[Armchair]

But that's not the argument being used.

To use your words " One way to safeguard this is by the intervention of a neutral magistrate"

However, as Orin states
"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."

IE, such a neutral magistrate isn't actually neutral. They're part of the executive branch. So, to use your tire burning example, the executive branch is just giving itself permission to invade the home privacy of an individual with a "neutral" magistrate signing an administrative warrant.

The distinction here is important. And why can the executive branch "give itself" permission in one case, but not another, to invade the home and property of an individual?

[Ridgeway]

You are making an an error in viewing the distinction as between private property and everything else. Rather the difference is between private homes and everything else.

Take a different aspect of ICE, for example They are allowed to enter a business and demand to search the employee files to verify I-9s and whatnot. They cannot, however, show up at the business owner's home and search his personal files looking for evidence of immigration violations, at least not without a real search warrant.

[Estragon]

No, the neutral magistrate is the person who approves the judicial warrant on the basis of PC. The article 2 judges, while indeed part of the executive branch, at least nominally provide a check on executive branch action in issuing their warrants— if they can be properly called that— based on less than would be required in the scenarios I outlined: seizure of a person or their stuff inside their home. But that is only part of the equation. The strength of the private party’s interest is less also, at least in relation to the level of seizure. Which is why you have to use the word “invade” twice— in an attempt to conflate entry with the specific things that the 4th affords special protection. Again. You may disagree with the current state of the analysis, viewing it as too favorable to the government. But it is a balancing thing.

[David Nieporent]

Let's ask a larger question. Are administrative warrants valid at all, for any reason? Why or why not?

I think that's the wrong framing of the question. The real question is whether "administrative warrants" are even warrants at all. I can type "David can operate a vehicle if he wants" on a piece of paper and put the word "License" at the top of the page, but that doesn't make it a driver's license. Why would some rando at DHS typing, "Warrant" on a piece of paper make it one?

[Brett Bellmore]

I have similar misgivings about the whole notion of Article 2 "judges".

[Guardian253]

CIDs don't even use "administrative" judges.

[hobie]

I'm a bit elated to see that - so far - none of our MAGA have toddled into this post and celebrated the cheapening of the 4th Amendment. I didn't think it was possible...but have we actually reached a limit?

[jb]

You apparently just weren't patient enough to wait for Life of Brian to find this and start posting. And in the open thread Brett is basically saying it's no big deal because sometimes that government does bad stuff even if they have warrants.

But yes, I'm glad to see quite a few MAGAs pushing back on this.

[ReaderY]

ICE is correct on this one, to a point.

The 4th Amendment applies to “the people.” Non-legally-resident aliens in general, Illegal aliens in particular, and certainly ones with a final removal order, are not members of “the people.” So the 4th Amendment doesn’t apply. Period.

That said, if they start making “mistakes” and use this leniency as an excuse to search or seize from citizens’ homes, I would think that the absence of a warrant would make them more subject to liability. So they would have to take particular care to ensure they have the right place, and courts should take care to ensure they stay within their lane and don’t start moving down a slippery slipe to becoming a general secret police exempt from the usual rules across the board.

But the constitution is what it is and it says what it says. By its plain terms, it lets ICE do this.

Professor Kerr’s case says there is no Bivens remedy. It’s more than that. There is no legal right in the first place.

[ReaderY]

Clarification - the Constitutional leniency does not give ICE a warrant to enter “homes” belonging to anyone for the purpose of searching for and seizing illegal aliens . Rather, the leniency is narrower in the sense that it only lets them search the homes of - belonging to - illegal and other non-legally resident aliens. It excludes a category of persons, papers, and effects, not a search purpose, from the 4th Amendment’s scope,

However, because it excludes a category of objects, not a purpose, if means that if illegal aliens own their homes, they can be searched at any time and for any purpose.

This interpretation approach provides opportunities for legal ways around the leniency. Illegal aliens who own homes might want to consider taking on a citizen tenant/boarder with enough rights to be entitled to refuse consent to the entire place.

One could imagine a law firm specializing in immigration issues offering this as a service - drawing up some sort of form lease whereby a staff lawyer who is a citizen, or perhaps the firm itself, becomes a nominal tenant for a nominal fee in such a manner as to provide enough of an ownership interest in the home to trigger 4th Amendment protections, and hence to require the permission of the lawyer or firm to conduct a warrantless search.

[Life of Brian]

You seemed to write this very specifically about home ownership. Do you see a different result if the illegal alien is renting a home/apartment, or does that rental serve as temporary "ownership" under your model?

[ReaderY]

The ownership interest involved would follow existing 4th Anendment law. Under established cases, only the tenant’s interest matters when a landlord isn’t also occupying the premises.

I am taking a position here, however. I am interpreting the exemption somewhat narrowly and saying it does not extend to citizens. So if a property is shared by both citizens and aliens, the aliens (assuming they don’t give affirmative consent) are essentially ignored in the 4th Amendment analysis, which means either one of the citizens has to give consent or there has to be a warrant.

That’s why I think my proposed immigration law firm service in which the firm “rents” a property in a manner that conveys a tenancy interest sufficient to require its consent to a search could work and might hold up in the courts. The rental could be in the form of either an original lease by an owner or a sublease by a tenant (if the tenants are allowed to sublet).

[Life of Brian]

Yes, I get the workaround you're suggesting. I just wasn't clear if you thought it would apply to a pure lease from a landlord that just retains the standard right of entry and so on but not an actual tenancy interest. Sounds like not.

[MaddogEngineer]

You seem to be creating a greater burden on ICE here when making use of administrative warrants at a residence, to verify in advance the ownership of the domicile before attempting to enter. I'm unsure how any government agent could possibly know about such a novel legal arrangement in advance. Are you suggesting these would be poison pills, to invalidate the detention after the fact?

That really seems beyond what is being discussed here, whether ICE can legally visit residences with only an administrative warrant.

At any rate, it's not like there isn't already case law about a renter/landlord relationships and permission, unrelated to any immigration enforcement.

[ReaderY]

If the constitution imposes a greater burden on ICE then you ir it would like, why then, the constitution imposes a greater burden on ICE then you or it would like.

Since the post is about whether and under what circumstances what ICE is trying to do would be legal, I think my comment is on point. I am saying that under a fair textual reading of the constitution there are circumstances when it can do it, but they are narrower than it might like. Whether they are so narrow as not to make it worth it at all is for it to decide.

[MollyGodiva]

4A applies to everyone. Also ICE is using administrative warrants to arrest citizens as well.

[MaddogEngineer]

Except no one is being arrested. They are being detained. Remember, being an illegal alien isn't a crime. It's a civil offense. Or at least that's what I've been told once or twice.

(NB: yes, the reason it's important to provide aliens due process is not for their sake, but to protect the rights of citizens.)

[Sarcastr0]

Arrest and dentation are the same thing, legally. You need a warrant or probable cause for both.
Even for noncitizens, who turn out to also have rights.

[TwelveInchPianist]

"Arrest and dentation are the same thing, legally. You need a warrant or probable cause for both."

You don't need a probable cause to detain someone under Terry, which isn't usually considered an arrest. There is a loosely defined and context-dependent distinction between an arrest and a detention, but people who insist on the distinction are usually just splitting hairs.

[Sarcastr0]

They aren't called Terry detentions.
And a Terry stop is nothing like what's at issue here.

So quit throwing chaff.

[TwelveInchPianist]

They are sometimes called Terry detentions. And yes, a Terry stop is something like what's happening here, it's a fourth amendment seizure. You know, a detention.

You claim that you admit when you get things wrong.

Why don't you just admit that you made a mistake when you said, "Arrest and detention are the same thing, legally. You need a warrant or probable cause for both." It's an incorrect statement of the law.

[Your Public Name Here]

So when people ask a cop, "Am I being detained or am I free to go?" and you aren't free to go, is it an arrest, detention, or Terry stop at that point (or any combination thereof)?

[ReaderY]

They are being “seized.” The purpose of the seizure makes any difference.

[ReaderY]

Also, completely agree that ICE can’t do this with citizens or their property. My proposed workaround is essentially a method for citizens to put aliens under their aegis.

As I see it, rather than the exemption extending to citizens who happen to get mixed in with aliens, the exact opposite happens. The exemption does not apply to, and the 4th Amendment covers and protects, aliens who happen to get caught up with citizens. This means that while an exemption still exists, it is much narrower less useful, and easier to avoid than ICE would like.

[David Nieporent]

Except no one is being arrested. They are being detained.

No, they're being arrested.

(NB: yes, the reason it's important to provide aliens due process is not for their sake, but to protect the rights of citizens.)

Disagree. It's for their sake. Ours too, of course. But if ICE could somehow perfectly only target illegal immigrants who deserve it, it would still not be right to deny due process. Due process is for everyone, not just the innocent.

[ReaderY]

How do you explain the phrase “of the people?” Also, how do you explain the cases upholding the federal statute making it illegal for non-legally-resident aliens to possess a gun on grounds that such aliens lack 2nd Amendment rights because they are not members of “the people” - the same language the 4th Amendment also uses?

[hobie]

Dear AI, what is the difference between 'the people' and 'citizens' in the United States Constitution?

"In the U.S. Constitution, "the people" refers broadly to the entire populace or national community, enjoying fundamental rights, while "citizens" are a subset of "the people" with specific national allegiance and full political rights (like voting), though the Constitution's protections, especially post-14th Amendment, often extend to all "persons" within U.S. jurisdiction, blurring lines but distinguishing political participation. "The people" signifies popular sovereignty (e.g., "We the People"), while "citizens" denotes legal membership, but "persons" (including non-citizens) receive due process and equal protection, making "people" a broader, foundational concept versus the defined legal status of "citizen".

[decius]

The idea that some people aren't "people" when it comes to Constitutional rights sounds like it was ripped right from the pages of Animal Farm.

If illegal aliens don't have Constitutional rights, then ICE can just round them all up and put 'em in gas chambers, and that would be perfectly Constitutional, wouldn't it! Why wouldn't it?

It wouldn't be Constitutional because thats not how any of this works.

Amul Thapar, whose stupid opinion you are referencing, is engaging in performative partisan rationalization in hopes of attracting appointments from the deeply unprincipled people who lead a particular political movement (you know the one). He is saying to them that he is also totally unprincipled, and willing to craft seemingly logical explanations that will paper over unreasonable actions. Just the sort of lawyer the devils are looking to hire!

In reality, our Constitutional rights sit upon a backdrop of natural law and reflect the rights of humans. They are not special privileges of certain people. They are constraints upon the power of the government that are necessary for that government to be rational and just.

The reality is that we've watched the doors of US citizens in Minneapolis get hammered in by battering rams on the basis of administrative warrants that should have gotten more scrutiny. We've seen US citizens dragged out of their homes into the snow, beaten by police, taken in for 24 hour "Kavanaugh Stop" detentions or just dumped out of ICE vehicles in another part of town once they figure out they weren't lying.

If illegal aliens don't have Constitutional rights than no one has Constitutional rights, and that is precisely the situation in practice right now.

[ReaderY]

Aliens are persons who cannot be deprived of life, liberty, of property without due process of law. Most constitutional rights apply to all persons; a few have even broader applicability, e.g. “the accused” (6th Amendment”) or a “party” (13th Amendment). However, non-legally-resident aliens are not members of “the people” to whom a small number of specific enumerated rights apply. The 2nd Amendment is one. The 4th is another.

Don’t like it? Work to get the constitution amended. The Constitution isn’t a fount of justice or morality. It’s a compromise document that never pleased everyone and never satisfied everyone’s idea of how government should be from the moment it came into being.

The constitution says what it says. Prior to the 13th Amendment, slavery was totally permitted. When Mr. Trump thinks of natural law, he thinks if anything of Hobbes’’ Leviathan, in which natural law creates a war of all against all until some great dictator forces a peace by getting all to submit to him.

Trump may well b come the Leviathan who grants your wish of having natural law override constitutional text wherever the two conflict. And when that happens, you don’t get any choice WHOSE VERSION of natural law applies; Trump’s Hobbesian version has as legitimate a pedigree as Locke’s, Thomas Aquinas’ or anyone elses, and he has considerably more divisions than the Pope has.

Personally, I’ll take the constitution, warts and all, over natural law. Otto Wells, the only Reichstag member who spoke against the Enabling Act in 1933 in the last free speech ever made in Germany for more than a decade, acknowledged that the Weimar constitution is not a perfect constitution, and does not incorporate all his party’s ideals, but said that we stand behind it.

Same here. I stand behind our constitution as it is, warts and all, in full knowledge of its imperfections. I would not overthrow it in favor of somebody’s idea of natural law, whether yours or Mr. Trump’s.

[dwb68]

Police officers storming into a house without a warrant is one of those sacred American lines.**

The pendulum swingeth: Nothing turned Americans against immigration like Biden's massively open, unsecured border policies. Nothing will turn Americans against immigration enforcement faster than ICE storming homes without a warrant. Nothing will turn the Supreme Court against ICE immunity faster, too.

The underlying issue is the quotas, which drive and incentivize bad ICE behavior.

** Also its a very bad idea, since by and large Americans are armed in their homes.

[MaddogEngineer]

Yes, and this is the problem here. Taking a couple of particular actual cases, and extrapolating that to a general practice perhaps far beyond those actual incidents.

It's a bad general policy to make the enforcement emphasis be at domiciles, for reasons you name. Especially for a population that might be transient. But how these things are executed matters. Knocking on doors is one thing, busting them down like a Cops episode is another.

If I had my way, ICE wouldn't be doing many of the things they are. My preferences do not make their actions illegal.

[Sarcastr0]

Taking a couple of particular actual cases.

No, there is a policy memo. It was a *secret memo* which is itself a sign they knew they were doing bad shit.

This isn't a few bad apples executing badly, it's the written down standard practice.

[ah....Clem]

This isn't a few bad apples executing badly, it's the written down standard practice.

Yes.

And the larger problem is that the none of the people responsible for writing the "standard practice", or the attorneys who coached them about how to write the "standard practice", or the goo^H^H^H officers who followed this "standard practice" will face any consequences for violating the 4A.

They all know this and are acting accordingly.

[MollyGodiva]

SCOTUS not recognizing the historical remedy of suing the fed who violated your rights is the root of the problem. Require all cops to have liability insurance and you will see a substantial improvement.

[MaddogEngineer]

Maybe you should have workshopped that before hitting send/post. Because it was really stupid.

[JoeFromtheBronx]

Justice Stevens, in one of his opinions involving so-called "innocent mistakes" by police, noted that it is appropriate for society overall to have the burden here. The police are our agents.

He (or his clerks) found something said by Chief Justice Burger to back up his argument:

In a representative democracy, we are responsible, whether we like it or not. And so each of us is involved, and each is in this sense responsible when a police officer breaks rules of law established for our common protection."

(U.S. v. Leon)

Anyway, civil damage remedies were traditional means to address wrongdoing here. So-called originalist justices selectively skip over them, providing the worst of all worlds in the 4A context.

[TwelveInchPianist]

"SCOTUS not recognizing the historical remedy of suing the fed who violated your rights is the root of the problem."

From what I can tell, Congress foreclosed much of that remedy with the Westfall act. As noted above, ruling the constitutional violations fall outside its scope is a defensible position.

[jay.tee]

Malagerio has not pointed the Court to any precedent stating that administrative warrants do not grant officers authority to conduct an arrest in the home.

I’m going to risk idiotic snark in response, but not being a lawyer I don’t understand how this is the correct reasoning?

Shouldn’t the burden be to cite a precedent that explicitly grants the authority to conduct an arrest in the home? That the default should be no precedent of authority?

[tkamenick]

"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)."

I strongly suspect the real answer is "they just don't like it"

[ReaderY]

Moved

[John F. Carr]

Here is the full docket for Kidd v. Noem, formerly Kidd v. Mayorkas and before that Kidd v. Wolf. It started at the end of Trump 45 and lasted until Trump 47.

https://www.courtlistener.com/docket/17074161/osny-sorto-vasquez-kidd-v-chad-t-wolf/?page=3

The case was mostly settled. The settlement agreement is not available. Docket entries 535 and 545 summarize it.

The parties agreed: In the Central District of California, ICE agents must identify themselves as such instead of lying about their identity or purpose. They may not lie about their right to enter a house. Some parole agreements give law enforcement the right to enter without a warrant; this is common requirement of California state criminal law.

The court further ruled:

The Knock and Talk Class is entitled to judgment on its Fourth Amendment claim because Defendants maintain a system-wide policy and practice of entering the curtilage of homes, without a judicial warrant or consent, for the purpose of arresting the occupant. The Knock and Talk Class is further entitled to judgment on its APA claims because Defendants’ system-wide policy and practice violates 8 C.F.R. § 287.8(f)(2) and is “contrary to [a] constitutional right,” 5 U.S.C. § 706(2)(B).

Docket 502. The government is appealing (Ninth Circuit docket 25-4864) so we may have a more widely applicable ruling soon.

Plaintiffs' counsel was awarded over $2 million.

[Guardian253]

Thinking in the broader 4th Amendment context, CIDs (civil investigative demands) are non-judicial subpoenas which can have criminal implications. How are CIDs not in violation of the 4th Amendment? The 4th Amendment covers "persons, houses, papers, and effects". It does not place one above the other. It does not say houses are more important than papers or persons. In fact, "persons or things to be seized" language appears to put both on the same plane of importance. Moreover, the 4th Amendment is silent as to who issues the warrant. It merely states "no warrants shall issue, but upon probable cause." If CIDs are constitutional, then why aren't other administrative warrants? Both are government actions, both are non-judicial, and both intrude on items protected by the 4th Amdt.

[not guilty]

As I read the memo, 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.

To paraphrase The Treasure of the Sierra Madre -- Legal analysis?? We ain't got no legal analysis! We don' need no legal analysis! I don' have to show you no stinkin' legal analysis!!
https://www.youtube.com/watch?v=VqomZQMZQCQ

[TwelveInchPianist]

"Legal analysis?? We ain't got no legal analysis!"

Well, they do now.

[windycityattorney]

How to litigate it?

Hmm...the consent decree in Chicago [that DHS repeatedly ignored] seems a pathway. New variations of lawsuits filed by press and clergy in the 7th cir for various violations of the 1st amendment were litigated (that is, groups sought to enjoin DHS from certain practices in the 7th circuit). The policies and procedures employed by DHS was at issue there.

If a gaggle of photographers and journalists can sue (to stop) alleged repeated violations of 1st amendment; why couldn't someone sue to stop DHS violating the 4th?? Is there a qualitative difference amongst the bill of rights? I would note: a suit seeking to enjoin conduct (only) is not a suit for money damages. Perhaps there is a statute that prevents it? I don't know. I don't sue people or governments. I do file motions to quash arrest and suppress evidence in routine criminal cases but in the immigration context, its not about suppressing evidence its about stopping illegal seizures. Govt doesn't care about suppression of evidence in the immigration context. It's about seizing human beings. Or in the case of the journalists suit; attempts to stop retaliation against journalists by use of force, tear gas, rubber bullets, illegal arrest/detention, etc...which the Court did in fact grant an injunction ordering DHS to stop. Ordering DHS to wear body cams. Ordering DHS to report to the Court how many citizens it arrested. Ordering them to track deployments of tear gas and less lethal rounds.

Does somebody have to shoe-horn a 1st amendment argument into a 4th amend one just to get a god damn court hearing despite hundred years of precedent saying unequivocally that the "home" gets heightened 4th amendment protections?? If Payton says cops cannot enter a home without a judicial warrant to make a routine felony arrest (absent exigent circumstances); and other cases say immigrants (illegal or not) have 4th amendment protections as part of their right to due process, then why can't Payton just be enforced in the same context? Nobody disputes administrative warrants are not judicial warrants.

ICE/border patrol are going door to door in MN and are filling out administrative warrants in the field when they come across someone they want to detain or looks suspicious. Its a complete and total mockery of the 4th amendment. If the person has an order of removal; and DHS knows where the person lives or resides, do they think it would be difficult to get a federal judge to issue an arrest warrant to get them into custody? Why not take that simple step? If they were going after the worst of the worst this should be easy. State court judges do telephonic warrants these days. Are the feds that far behind?

[Bob Jones]

what about FTCA (federal tort claims act) liability

there is an exception for intentional torts like trespass

but there is also an exception to the exception for law enforcement.

FTCA i don't think has attorney fees-which is why lack of bivens remedy is so important in joe shmo's case

but the ACLU doesn't care if there are no attty fees awarded in one of their make a statement cases.

[F.D. Wolf]

The first statute allowing for the arrest of aliens for deportation pursuant to a warrant signed by an executive officer (as opposed to a judicial officer) dates to 1798. That has been the law and practice ever since. This makes logical sense, as deportation is a process carried out by the executive, not the judiciary. Congress has, in fact, explicitly taken pains to cut district judges out of the process, despite the very recent efforts of some rogue district judges to insert themselves into it.

The question of the propriety of these administrative immigration warrants did not directly reach the Supreme Court until 1960 in Abel v. United States, regarding an alien who had been arrested by immigration officers in his hotel room pursuant to an administrative warrant. The fact that a practice consistently and routinely used by the government took 162 years after its inception to first reach the Supreme Court is evidence in and of itself that the practice was generally accepted and considered legally noncontroversial.

Abel, the alien in that case, argued that the administrative warrant did not meet the "warrant" requirement of the Fourth Amendment. The Court, in opinion by Justice Frankfurter, no mean jurist or historian, held that Abel had waived the argument by not raising it below. Frankfurter went on, however, for three pages, forcefully arguing that such administrative immigration warrants did indeed comply with the Fourth Amendment. As Frankfurter wrote, the practice has been 'sanctioned by time". That was 66 years ago, so, it would seem, it has been further sanctioned by even more time today.

[Sarcastr0]

Read the OP.

[F.D. Wolf]

Read Abel.

[SRG2]

Perhaps it was considered non-controversial because of how the overall process was conducted.

[F.D. Wolf]

From 1954 to 1955, the INS conducted "Operation Wetback", a military-style, largest mass deportation of Mexicans in history, resulting in 1.1 million enforcement actions in 1954, a level that would not be seen again until 1986. The INS used administrative warrants and were not shy about entering private homes. This would have been relatively fresh on the minds of the justices in 1960.

The four dissenters in Abel were Earl Warren, Hugo Black, William Douglas, and William Brennan, a veritable Mt. Rushmore of great justices in the liberal pantheon. While Kerr &c. might have agreed with them in that case, I very much doubt a majority of the current Supreme Court will adopt their revisionist reading of Abel.

In 1978, the U.S. Civil Rights Commission issued a report to Congress recommending, among other things, amending the Immigration and Nationality Act to abolish administrative warrants and require warrants signed by a judicial officer. Needless to say, Congress has not yet adopted that recommendation.

[Incunabulum]

If the Executive can't give itself a warrant - then would that not make administrative warrants, which in this case are calling for arrest and detainment, illegal?

And if you have an administrative warrant it's just weird that you can't act on the warrant as long as the target is inside a building? Are there limits here?

Their own home, someone else's? A shed? Inside a car? A tent? Where does the magic protection of the 4th stop?

[Guardian253]

CIDs are perfectly constitutional and other administrative warrants outside the immigration context have been found constitutional. I'm not sure why people find 205 administrative warrants controversial. If you want this to stop, get rid of the administrative state and anything administrative law related. IMO all of administrative law is unconstitutional and just a cheap way to get around the 4th Amendment. But, for some reason, even "libertarians" love the administrative state.

[borhani]

What is the applicability, or not, of United States v. Tylan Lucas? It seems to present similar questions.
https://law.justia.com/cases/federal/appellate-courts/ca8/05-2165/052165p-2011-02-25.html
Thank you

[Guardian253]

As relevant as Camara v. Municipal Court, 387 U.S. 523 (1967). The courts have approved of administrative actions and held that the 4th Amendment doesn't apply. It's settled law. I don't know why Orin is up in arms over this. Moreover, it's completely constitutional to arrest without warrant if a criminal is right in front of the officer committing a crime! I really don't understand how the settled case law is offensive to people.

[dwb68]

ICE rebuttal here, complete with the deep state accusation!

https://www.wsj.com/opinion/how-the-deep-state-thwarted-ice-administrative-warrants-1a847297?mod=hp_opin_pos_2

"Mr. Percival is general counsel for the U.S. Department of Homeland Security."

"Illegal aliens, however, don’t have the same rights as citizens. Under federal immigration law, officers may issue an administrative warrant, which means that the probable-cause finding is made by an executive-branch officer rather than a judicial officer. This is consistent with broad judicial recognition that illegal aliens aren’t entitled to the same Fourth Amendment protections as U.S. citizens. It is also consistent with the Supreme Court’s admonition that the touchstone of the Fourth Amendment is whether the search or seizure is “reasonable,” not whether it is supported by a judicial warrant. In Abel v. U.S. (1960), the justices recognized that there is “overwhelming historical legislative recognition of the propriety of administrative arrest for deportable aliens.
While administrative warrants may satisfy the Fourth Amendment for any arrest of an illegal alien, ICE currently uses these warrants to enter an illegal alien’s residence only when the alien has received a final order of removal from an immigration judge. That means the alien has already seen a judge, presented his case, received due process, and been ordered removed from the country. Aliens in this context are fugitives from justice, and the Eighth U.S. Circuit Court of Appeals, which has jurisdiction over Minnesota, has expressly recognized that administrative warrants may be used to enter a residence to capture a fugitive. "

Emphasis mine.

idk... I stick to me statement that a search and seizure at home is one of those sacred lines.

[Incunabulum]

But who's home?

[David Lawson]

Are the Fourth Amendment’s people the same as the Second Amendment’s people?

[LibertyRuler]

Regardless of my opinion on this matter, I want to compliment Mr. Kerr on a thorough and REASONably balanced explanation to this complicated legal issue. I scoured lots of locations for such an analysis which actually cited Court rulings and also presented both sides and found this to be the only article. Well done sir.