The general counsel for the Department of Homeland Security has published a Wall Street Journal op-ed with some interesting observations. I think this is the key passage because it hinges on the claim that “reasonableness” under the Fourth Amendment can substitute for judicial oversight in the specific context of immigration enforcement, a claim that is doing a great deal of work in justifying administrative entry into private residences:
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.
His primary complaint and apparent reason for the op-ed is:
Although the law is clear, deep-state actors in the federal government have for decades told ICE officers that they may not enter a fugitive alien’s home even with a final order of removal and administrative warrant. Because Congress hasn’t created a mechanism to obtain a judicial warrant, this meant that under previous presidential administrations, ICE would sit outside the homes of fugitive aliens waiting for them to come outside before arresting them. Illegal aliens quickly identified this loophole. Some would openly taunt ICE officers by waving through the window or passing notes under the door.
No serious country would tolerate this clear aberration of its laws or allow its national security to be jeopardized and mocked in this manner. Congress never intended the immigration laws to operate this way and the Fourth Amendment doesn’t require it.
I think that the central argument of many of the critics of the ongoing ICE operations is lack of due process. But “due process” is not a singular, uniform requirement of judicial warrants or individualized hearings; it varies across legal domains. His claim, in effect, is that in this context due process consists of the prior deportation order itself.
ICE agents should be better-trained and more merciful in carrying out even legitimate enforcement operations; that doesn’t negate the legitimacy of enforcing our laws. Assessing the ultimate legality of these claims is for the courts, but the argument is worth examining on its own terms because it illustrates how much executive power now rests on administrative interpretations of “reasonableness” rather than on explicit judicial authorization.
