206. "Administrative Warrants" and the Percival Op-Ed

ICE is claiming the authority to search private homes without a judicial warrant if it's looking for non-citizens under a "final order of removal." DHS's public defense rests on two incorrect claims.

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Every Monday morning, I’ll be offering an update on goings-on at the Court (“On the Docket”); a longer introduction to some feature of the Court’s history, current issues, or key players (“The One First ‘Long Read’”); and some Court-related trivia. If you’re not already a subscriber, I hope you’ll consider becoming one—and upgrading to a paid subscription if your circumstances permit:

After a pair of extra issues over the weekend, I wanted to use today’s “Long Read” to reflect on the exceptional reporting from the Associated Press (with help from a whistleblower)—that, last summer, ICE prepared (but didn’t publicize or widely circulate) a memorandum concluding that immigration officers can lawfully enter private homes without a judicial warrant so long as they have an “administrative warrant” (a piece of paper signed by an ICE officer) to arrest a non-citizen who is (allegedly) subject to a final order of removal. Just like ICE’s attempt to redesignate millions of non-citizens who have been living in the United States for years as “arriving aliens” for purposes of arrest and detention, one can draw a straight line from that memorandum to some of the more terrifying videos we’re seeing out of the Twin Cities and other jurisdictions in which federal agents are barging into private homes without consent.

Right-wing commentators (including a handful of law professors) have tried to defend the memo by twisting the Supreme Court’s Fourth Amendment jurisprudence into a pretzel. But in a remarkable Wall Street Journal op-ed, the General Counsel of the Department of Homeland Security suggested something else entirely—that the memo reflests “broad judicial recognition that illegal aliens aren’t entitled to the same Fourth Amendment protections as U.S. citizens,” and that non-citizens who have received a “final order of removal” are “fugitives from justice”—which is why they can be arrested based solely upon “administrative” warrants.

As I explain below, both of these claims are false. Final orders of removal are not arrest warrants. The federal government has the authority to arrest and detain individuals once they are subject to a final order of removal, but the norm (and the law) for decades has been that many of those subject to removal may and do nevertheless remain at liberty until a date specified by the government in what’s known as a a “bag-and-baggage letter.” For those for whom that date hasn’t yet arrived, they are no more “fugitives from justice” than criminal defendants who have been released on bail. (And this doesn’t even account for the countless non-citizens whose removal proceedings are conducted in absentia, and who thus don’t even know that a final order of removal has been entered against them.)

The other argument—that non-citizens without some kind of lawful or temporary immigration status aren’t entitled to the same Fourth Amendment protections as everyone else—is also bunk. Indeed, although the Supreme Court has not expressly resolved the question of whether the Fourth Amendment applies to anyone in the United States, its broader jurisprudence is radically inconsistent with what appears to be the Trump administration’s position.

More on that below (and in this video), but first, the (other) news.

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On the Docket

The Merits Docket

The Court handed down three more rulings in argued cases last week—even though none were the tariffs cases:

1. In Berk v. Choy, Justice Barrett held for a (basically) unanimous Court that a Delaware state rule requiring an “affidavit of merit” from a licensed medical professional before a plaintiff can bring a medical malpractice suit does not apply to suits in federal court—another entry in the Court’s (very complicated) jurisprudence since Erie R.R. Co. v. Tompkins that has attempted to delineate when state rules can and can’t apply in federal court in cases in which the substantive claims arise under state law.(Justice Jackson concurred in the judgment.) Civil procedure professors, rejoice.

2. Civil procedure professors may also be the only ones excited about Coney Island Auto Parts Unlimited, Inc. v. Burton—in which Justice Alito, writing for a (basically) unanimous Court, held that a party seeking relief from a final judgment under Rule 60(b) of the Federal Rules of Civil Procedure must file within a “reasonable time,” even if the ground for relief is that the trial court lacked what’s known as “personal” jurisdiction over the defendant. (Justice Sotomayor concurred in the judgment.)

3. And in Ellingburg v. United States, Justice Kavanaugh wrote for a (truly) unanimous Court in holding, in a five-page opinion, that the federal Mandatory Victims Restitution Act of 1996 imposes criminal punishment for purposes of the Ex Post Facto Clause. What that means for Ellingburg himself, the Court left for the Eighth Circuit on remand. Justice Thomas wrote a separate concurrence, in which Justice Gorsuch joined.

The only other opinion out of the Court last week was a truly striking dissent in Indiana ex rel. Howell v. Circuit Court of Indiana, in which Justice Jackson objected to the Court’s refusal to grant “in forma pauperis” status (the right to file papers in the Supreme Court without paying a filing fee or having the brief formatted in fancy but expensive booklets) to a state prisoner who had, in the majority’s view, abused the Court’s process by filing too many frivolous appeals. As Jackson explained across seven pages, “A categorical, forward-looking filing bar is a questionable restriction as to any litigant who cannot afford to pay a filing fee. For me, it is an intolerable one as to incarcerated individuals.”

Jackson’s dissent is revealing in several respects. First, it provides a lens into the Court’s internal approach to these kinds of “frequent filers,” including use of the term “Martinizing” to refer to litigants who receive such a filing bar (named after the 1992 case that first imposed such a categorical block on IFP filings). Second, it explains just how much Martin has metastatized—now to include Howell, whose “frequent filing” amounted to six petitions over 14 years. Third, and unlike the rule the Court adopted in Martin, Jackson argued that an IFP filing bar is especially difficult to justify as applied to incarcerated prisoners. As she wrote, “when balancing prisoners’ access to judicial review, on the one hand, and reducing our administrative burden, on the other, we should err on the side of keeping our courthouse doors open.” Alas, she was alone.

The Emergency Docket

The Court didn’t issue any rulings on emergency applications, but it received an especially significant one—from litigants challenging California’s congressional redistricting on the ground that it’s an impermissible racial gerrymander. (Folks may recall that Prop 50, the California measure, was adopted as a response to Texas’s redistricting of its own House delegation.) In the California case, the three-judge district court rejected the plaintiffs’ challenge, and they’re now asking the Court (with the help of the Trump administration, which is, shockingly, taking the opposite position from what it took in the Texas case) to block Prop 50 itself.

It’s difficult to see any universe in which the same Court that put Texas’s map back into effect just eight weeks ago (in the face of a district court ruling finding racial gerrymandering) could now justify blocking California’s map on the same grounds the district court had found in the Texas case but the justices paused. Indeed, my own view is that, as problematic as the Court’s December intervention was, intervening here would just be an enormous black mark—and would understandably exacerbate charges that the justices are voting their partisan political preferences. Either way, Justice Kagan has ordered the defendants to respond by 4 p.m. ET this Thursday—which probably means we won’t get a ruling until next week, at the earliest.

The Week Ahead

Even though the Court (like the rest of Washington) is closed today, we still expect a regular Order List at 9:30 ET.¹ But that’s the only thing on tap; no rulings in argued cases are expected; no high-profile emergency applications are likely producing rulings this week; etc. Indeed, the justices won’t retake the bench until Friday, February 20. At the pace of current events, who knows what things will look like by then.

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The One First “Long Read”: The DHS General Counsel on “Administrative Warrants”

Although Saturday’s tragic (and enraging) events in Minneapolis have overtaken last week’s AP scoop,² it seems worth coming back to the putative legal justifications that the federal government is offering for the power to enter private homes without judicial warrants or exigent circumstances in immigration removal cases. My friend and Stanford law professor Orin Kerr has a thoughtful series of posts on the doctrinal contours of the Fourth Amendment question—which the Supreme Court has never squarely answered, but which, as Kerr suggests, leans pretty heavily against ICE having the power it’s claiming. (One might also point out that, if the government were more confident in the validity of its analysis, it wouldn’t have been so skulky in how it adopted and distributed it.)

Rather than reiterating Kerr’s posts, I wanted to use today’s “Long Read” instead to focus on two claims that are behind a lot of the commentary supporting ICE’s behavior—including in Mr. Percival’s Wall Street Journal op-ed.

Let’s start with the Fourth Amendment claim—that “illegal aliens” don’t have the same Fourth Amendment rights as other non-citizens. The Supreme Court has never held that; indeed, it has never even suggested it. I’m also unaware of lower-court cases that have expressly held as much, either. (There’s also the pesky little textual problem—that the Fourth Amendment refers to “people,” not “citizens,” with respect to those on whom it confers a right.) And in non-Fourth Amendment cases, the Court has assiduously avoided even suggesting that undocumented immigrants physically in the United States have fewer constitutional rights than non-citizens with lawful or temporary immigration status—most recently by ducking the issue in a case about whether undocumented immigrants are protected by the Suspension Clause (the majority decided to answer a different question altogether—one that doesn’t distinguish between non-citizens based upon their immigration status).

To be sure, the Supreme Court has held the Fourth Amendment (or, at least, the Warrant Clause) inapplicable to a search of a Mexican national’s home—in Mexico. There are also different exceptions to the Warrant Clause that could come to bear in searches of private homes—from probable cause to exigent circumstances to, for homes sufficiently close to an international border, the possible overlap of the “border search” exception. But that wasn’t Percival’s claim. As a general proposition, a non-citizen, regardless of their immigration status, has the same Fourth Amendment rights in their home that a citizen has.

The more subtle argument is that an “administrative warrant” (really, just a piece of paper signed by an ICE officer) is sufficient to justify entering a private home when the suspect is a “fugitive from justice,” relying on cases that have allowed such inferior process where the government is looking for escapees. But any attempt to analogize non-citizens subject to a final order of removal to true fugitives from justice is based on a simply oblivious (or mendacious) understanding of how immigration law actually works.

To make a very long and complex story a bit shorter, a final order of removal is not the last step before a non-citizen is removed from the country. There are at least three circumstances in which non-citizens subject to a final order of removal can lawfully be at liberty, and my understanding is that these three circumstances encompass a large number of people:

First, unless the individual is already in custody, ICE will inform them of the date by which they need to report for purposes of removal (or by which they must voluntarily remove themselves). This is known, colloquially, as a “bag-and-baggage letter.” Until that date comes, it quite obviously follows that an individual who is at liberty is not a “fugitive from justice.” (Indeed, many in this category are regularly checking in with ICE in the interim—rather disproving any implication that they are hiding from the government.)

Second, there are statutory and constitutional limits on how long ICE can detain individuals pending their removal—so that those who were in custody already, or who report as required by their bag-and-baggage letter, will often nevertheless be released by ICE if their removal can’t be effecutated within those time limits. Those individuals, too, are quite obviously not “fugitives from justice.”

Third, ICE conducts a fair number of removal proceedings in absentia—with the subject of the hearing neither present nor necessarily aware that a final order of removal has been entered. It ought to be axiomatic that one cannot be a fugitive from an order of which they have no notice.

To be sure, it is possible to be a fugitive from ICE; one can (and some do) refuse to report as required in a bag-and-baggage letter, and one could also escape from ICE custody. But my anecdotal understanding is that both of these subsets are relatively small minorities of the population of individuals subject to a final order of removal (the latter especially so). And neither Percival’s op-ed nor ICE’s memo have suggested that they’re targeting these individuals, specifically. Otherwise, even a non-citizen who is subject to a final order of removal (1) still has Fourth Amendment rights; and (2) is not a fugitive from justice. There may be individual cases in which a judicial warrant isn’t required before entering a private home without the resident’s consent (the Supreme Court just decided such a case two weeks ago), but there’s no support for the proposition that it’s permissible as a general policy.

The harder question is whether Percival, as General Counsel of the Cabinet department that oversees ICE and CBP, actually understands these nuances of Fourth Amendment and immigration law and wrote that op-ed anyway—or doesn’t. Neither answer is especially encouraging.

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SCOTUS Trivia:
The Longest-Serving Senior Associate Justice

Speaking of Professor Kerr, an unrelated Twitter post of his from last week gave me an excuse to re-up one of my favorite, completely obscure pieces of Supreme Court trivia—the identity of the only person to ever sit in every seat on the bench (i.e., to go from junior associate justice to senior associate justice, and then be elevated to Chief Justice): Harlan Fiske Stone.

As I noted back when I did the Stone trivia, he served as senior associate justice for only a few months between Justice McReynolds’ retirement on January 31, 1941, and his own elevation to the center seat on July 3. But that led me to wonder which justice spent the most time as senior associate justice.

The answer, as it turns out, is Hugo Black. Black, who was FDR’s first appointee to the Court in August 1937, became the senior associate justice less than eight years later—when Owen Roberts retired on July 31, 1945. And (obviously) he continued serving as the senior associate justice through his retirement on September 17, 1971 (26 years, one month, and 17 days later). To put into context how remarkably long that period was, Justice Thomas, who’s been the senior associate justice since Justice Kennedy’s July 2018 retirement, would have to serve until the September 2044 (when he’d be 96) to take over first place.

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1. In a call back to how the Court operated at the height of the COVID pandemic, the Court is issuing the orders only electronically—versus distributing hard copies to the Court’s press corps in person.

2. My friend (and NYU law professor) Barry Friedman and I have an op-ed in Monday’s New York Times on the case for local/state prosecutions of federal officers in response to Saturday’s events (and others).