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.
This video from Mac Randolph shows nurse Alex Pretti delivering a final salute to his father, a veteran, in his last moments. Pretti's values are clear...."so that we may enjoy the gift of freedom....We have to work at it, nurture it, protect it..."
“The viral video shows Pretti, an ICU nurse at the Minneapolis VA Medical Center, delivering a final salute and tribute to a patient named Terrence Lee Randolph who passed away in the ICU. The footage was shared by Mac Randolph, the son of the deceased veteran, who thanked Pretti for his service.”
Another excellent post! Thank you. The long-read should be offered as an Op-Ed across the country so that it is seen by widest possible audience.
My only other suggestion is that you find a way to change “it is my understanding” to something more certain wherever possible even if that means checking with immigration law experts. In addition, references to “policy”, “tradition” and the usual practice need to address the Trump Disruptor claim that would render such labels as meaningless to the Administration and its supporters who are intent on discarding the so-called liberal policies, traditions and usual practices in favor of its assertion of “we are the Law here” executive supremacy.
I am still hoping you will address my comment on last Thursday’s bonus post.
Does the memo pass the legal smell test as legitimate legal advice, or is it evidence supporting a claim that the lawyer has participated in a criminal conspiracy against protected class of individuals? At the least are there grounds for attorney discipline?
> 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
Harisiades?
With all respect, this entire section is an "absence of evidence" fallacy. It's true enough that decisions about the non-citizen rights are scarce, but you don't show support for your claim either. (Just from the text, I agree with you that "the people" sounds like a broader category than citizens, but I'm dubious it goes so far as to include those illegally present.)
You've also gerrymandered out a recent case from the 6th Cir, ruling that a non-citizen with a "lack of relationship with the government as an unlawfully present individual" could be disarmed. And Judge Thapar concurrence addressed the 4th Amendment specifically; he thought non-citizens weren't part of "the people" as originally understood at all. (I personally think this was pretty bad originalism, but SCOTUS is probably more interested in what Thapar has to say lol.)
Anyway, hope everyone is doing well out there today.
Chris, you commit the same fundamental and egregious error as Percival did in his Wall Street Journal op-ed. The particular principle governing the rights and powers reserved to the People that you and Percival overlooked or ignored was addressed specifically and expressly in the Ninth Amendment. This is super simple and super straightforward.
No judge (or lawyer) worthy of the title could read the Ninth Amendment and fail to see that it stated a clear command about how our "Constitution" absolutely "shall not be construed." Our "Constitution" NEVER can "be construed to deny or disparage" ANY rights "retained by the people" because of any mere "enumeration in the Constitution" of "certain rights." Yet, denying or disparaging rights is exactly how you and Percival abused the rights that were enumerated in the Fourth Amendment.
More generally, although lawyers who sue on behalf of an injured person naturally sue regarding the violation of a right, it’s clearly wrong to think of our Bill of Rights as being about mere rights. The first 10 amendments are most fundamentally about power. That principle (and other crucial principles regarding power) were emphasized expressly in the Tenth Amendment and in the Necessary and Proper Clause of Article I. They summarized the purpose of our entire Constitution and every part of our national government.
As the Tenth Amendment emphasized, our public servants in national government have only the limited “powers” that were “delegated to” them by the People “by the Constitution.” As Article I emphasized, the People delegated to our public servants in national government only such powers as are “necessary and proper” to fulfill the purposes stated in the Preamble.
That is why Article I emphasized that Congress has no powers other than those "legislative Powers herein granted," i.e., the power to "make all Laws" (and only those laws) that are both "necessary and proper for carrying into Execution [Congress's enumerated] Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." That’s also why Article II emphasized that the President’s constant duty is to "faithfully execute the Office of President," i.e., exclusively to "preserve, protect and defend [our] Constitution."
The Bill of Rights was written and ratified to emphasize (as the Tenth Amendment emphasized specifically and expressly) that certain "powers" were “reserved” to “the people.” The powers reserved to the people included (as the First Amendment emphasized) powers over our own minds, mouths and feet, as it were, i.e., the freedom of thought, expression, communication, association and assembly. The powers reserved to the people included (as the Fourth Amendment emphasized) the power “of the people” over our own “persons, houses, papers, and effects.”
As the Ninth Amendment expressly emphasized, the enumeration of rights in the First and Fourth Amendments never was meant to (and cannot constitutionally or even rationally be abused to) justify extending the power of our public servants. In all instances, their power is limited to those measures that are “necessary and proper” to serve our interests. The rights expressed or implied in our Constitution indicate, but they do not (and they never were expected to) necessarily define, the limits of the powers of our public servants.
Of course, this is just part of the playing for time playbook; changing the facts on the ground until the law belatedly catches up. This Administration has proven the law is not the guardrail that was presumed under regular order.
The use of the term “warrant”—which most of the public understands to be a judge-signed document—to describe an ICE employee-signed form creates tremendous confusion and opportunities for 4A rights being violated.
So, judges and Congress, stop DHS from using the term “warrant” to describe these administrative documents. We got one set of Miranda warnings. One kind of “whole” milk, champagne, dollar bill, and aspirin. Do us a favor—stop the confusion.
A search warrant is different from an arrest warrant & they involve different permissible actions on the part of law enforcement. It is likely most people also don't understand that.
Steve, I agree with most of your arguments. I was trying to think through other situations where non-citizens are determined to have other than full Constitutional rights. Voting is one. The Second Amendment is not available to individuals unlawfully present in the United States, by federal law.
However, it seems to me that the immigration laws themselves with regard to processing claims by individuals seeking asylum or refugees, strongly suggest that Congress has determined that non-citizens have Fifth Amendment rights to Due Process and Eighth Amendment rights regarding cruel and unusual punishment. The courts have also recognized Fourth Amendment rights prohibiting search of an individual's property without a judicial warrant for non-citizens, albeit in another country.
It seems to me that the General Counsel has written an opinion piece that agrees with current policy, not established law.
Just curious. How would you suggest dealing with the situation you described as a Third factor, i.e.,:
"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."
Is it your suggestion that failing to show up for various due process hearings provides a "[Stay] out of jail" card since the defendant doesn't have notice of the proceedings?
How do you propose providing notice when the defendant has provided no or false contact information?
Steve, I greatly appreciate your persistence and promptness in keeping up with, exposing, and explaining the federal government's increasingly insane and outrageous attacks on the foundational values and principles of our Republic. Justice Alito seems fond of referring to British legal opinions during the colonial era, notoriously in the Court’s 2022 Dobbs decision which overturned Roe v. Wade. May we anticipate that he will refer to the use of writs of assistance, or general warrant-free search warrants utilized by British soldiers and custom officials in pre-Revolutionary Boston (1760s-1770s), authorizing them to search any home or ship for smuggled goods without probable cause, as evidence that the right to a zone of privacy is more limited by the Fourth Amendment or “not as deeply rooted in the Nation's history and traditions" as we might naively think and hope?
Judge Thapar recently argued that basically none of the protections in the Bill of Rights apply to non-citizens. I think that’s pretty clearly incorrect, but this administration has done crazier things on flimsier legal bases (see Nov. 2020 to Jan. 2021), so this should be more than enough for them to claim at least a veneer of legitimacy.
The definition of "fugitive" in both state & federal statutes means being charged with a crime or having escaped from custody in one jurisdiction & located in another. I could be wrong, of course, b/c the law for deportation may define the word differently, but having a deportation order is not a criminal charge nor does it involve escape. Law enforcement may not treat one subject to a civil order as they would treat a fugitive.
Please talk about the decision in one sentence by the eighth circuit or appellate to overrule what the district judge (Menendez?) said about use of violence in Minnesota.
I have not seen any writings about this decision and definitely about the effect of allowing ICE to continue what they’re doing.
Professor, although I guess it’s nice to see 9-0 decisions, I’ve always heard that SCOTUS takes only the knottiest cases. But they can’t be so tough if all nine justices agree. Of course, I’m not talking about cases where the Court has original jurisdiction. What am I not understanding?
SCOTUS no longer considers itself bound to decide its Constitutionally assigned "original Jurisdiction" cases. I.e., it no longer itself adheres to supporting the Constitution. The Justices' oath or affirmations are ignored with total impunity BECAUSE CONGRESS PERMITS IT. (See 22-387 for 1 instance)
🔥 The Trump–Deep State Playbook 99% Will Never See
Everyone argues surface politics. Nobody sees what actually decided 2024: the invisible war machine behind both.
⚡ How Trump weaponized rage against the permanent system🎯 Why the unelected nexus doesn't care which party wins📋 The complete playbook—hidden in plain sight
Built from hard OSINT: Pew • Lochner • FDR • Mueller
This is the classified briefing. Not commentary.
Miss this → everyone else stays blind while you ask: "How did I not see this coming?"
↻ Restack so others see
Geopolitics In Plain Sight – The picture 99% never get
The DHS General Counsel relies on the Supreme Court case of Abel v. United States. That case is a little complicated, but seems to give some support to the notion that administrative warrants may be used to arrest illegal aliens in their homes.
Adding to the first two fallacies about warrants, they've broken into homes/churches/businesses of citizens on the basis of hiding "illegal" immigrants.
This video from Mac Randolph shows nurse Alex Pretti delivering a final salute to his father, a veteran, in his last moments. Pretti's values are clear...."so that we may enjoy the gift of freedom....We have to work at it, nurture it, protect it..."
.
https://www.facebook.com/share/r/19v8tN3rL6/
.
“The viral video shows Pretti, an ICU nurse at the Minneapolis VA Medical Center, delivering a final salute and tribute to a patient named Terrence Lee Randolph who passed away in the ICU. The footage was shared by Mac Randolph, the son of the deceased veteran, who thanked Pretti for his service.”
Can’t see the video. Makes you log into Georgetown’s Box account.
Steve:
Another excellent post! Thank you. The long-read should be offered as an Op-Ed across the country so that it is seen by widest possible audience.
My only other suggestion is that you find a way to change “it is my understanding” to something more certain wherever possible even if that means checking with immigration law experts. In addition, references to “policy”, “tradition” and the usual practice need to address the Trump Disruptor claim that would render such labels as meaningless to the Administration and its supporters who are intent on discarding the so-called liberal policies, traditions and usual practices in favor of its assertion of “we are the Law here” executive supremacy.
I am still hoping you will address my comment on last Thursday’s bonus post.
Thank you.
MC
Steve:
Does the memo pass the legal smell test as legitimate legal advice, or is it evidence supporting a claim that the lawyer has participated in a criminal conspiracy against protected class of individuals? At the least are there grounds for attorney discipline?
Any thoughts on a Recission Petition to really defund ICE including clawing back existing appropriations?
> 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
Harisiades?
With all respect, this entire section is an "absence of evidence" fallacy. It's true enough that decisions about the non-citizen rights are scarce, but you don't show support for your claim either. (Just from the text, I agree with you that "the people" sounds like a broader category than citizens, but I'm dubious it goes so far as to include those illegally present.)
You've also gerrymandered out a recent case from the 6th Cir, ruling that a non-citizen with a "lack of relationship with the government as an unlawfully present individual" could be disarmed. And Judge Thapar concurrence addressed the 4th Amendment specifically; he thought non-citizens weren't part of "the people" as originally understood at all. (I personally think this was pretty bad originalism, but SCOTUS is probably more interested in what Thapar has to say lol.)
Anyway, hope everyone is doing well out there today.
Chris, you commit the same fundamental and egregious error as Percival did in his Wall Street Journal op-ed. The particular principle governing the rights and powers reserved to the People that you and Percival overlooked or ignored was addressed specifically and expressly in the Ninth Amendment. This is super simple and super straightforward.
No judge (or lawyer) worthy of the title could read the Ninth Amendment and fail to see that it stated a clear command about how our "Constitution" absolutely "shall not be construed." Our "Constitution" NEVER can "be construed to deny or disparage" ANY rights "retained by the people" because of any mere "enumeration in the Constitution" of "certain rights." Yet, denying or disparaging rights is exactly how you and Percival abused the rights that were enumerated in the Fourth Amendment.
More generally, although lawyers who sue on behalf of an injured person naturally sue regarding the violation of a right, it’s clearly wrong to think of our Bill of Rights as being about mere rights. The first 10 amendments are most fundamentally about power. That principle (and other crucial principles regarding power) were emphasized expressly in the Tenth Amendment and in the Necessary and Proper Clause of Article I. They summarized the purpose of our entire Constitution and every part of our national government.
As the Tenth Amendment emphasized, our public servants in national government have only the limited “powers” that were “delegated to” them by the People “by the Constitution.” As Article I emphasized, the People delegated to our public servants in national government only such powers as are “necessary and proper” to fulfill the purposes stated in the Preamble.
That is why Article I emphasized that Congress has no powers other than those "legislative Powers herein granted," i.e., the power to "make all Laws" (and only those laws) that are both "necessary and proper for carrying into Execution [Congress's enumerated] Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." That’s also why Article II emphasized that the President’s constant duty is to "faithfully execute the Office of President," i.e., exclusively to "preserve, protect and defend [our] Constitution."
The Bill of Rights was written and ratified to emphasize (as the Tenth Amendment emphasized specifically and expressly) that certain "powers" were “reserved” to “the people.” The powers reserved to the people included (as the First Amendment emphasized) powers over our own minds, mouths and feet, as it were, i.e., the freedom of thought, expression, communication, association and assembly. The powers reserved to the people included (as the Fourth Amendment emphasized) the power “of the people” over our own “persons, houses, papers, and effects.”
As the Ninth Amendment expressly emphasized, the enumeration of rights in the First and Fourth Amendments never was meant to (and cannot constitutionally or even rationally be abused to) justify extending the power of our public servants. In all instances, their power is limited to those measures that are “necessary and proper” to serve our interests. The rights expressed or implied in our Constitution indicate, but they do not (and they never were expected to) necessarily define, the limits of the powers of our public servants.
Especially in light of the history of the Fourth Amendment, there is no merit in law or logic to the pretense that its text somehow can be construed to authorize our public servants to engage in the very kind of abusive conduct that gave rise to the Fourth Amendment. See, e.g., https://constitutioncenter.org/the-constitution/historic-document-library/detail/james-otis-against-writs-of-assistance-february-24-1761
https://open.substack.com/pub/heathercoxrichardson/p/january-25-2026?r=56sszr&utm_medium=ios&shareImageVariant=overlay
"..ought to be axiomatic.. " is wishful thinking as you know. Another professor's viewpoint adds to what Steve wrote. https://www.lawfaremedia.org/article/can-ice-enter-a-home-to-make-an-arrest-with-only-an-administrative-warrant . Considering the Court's view about ALJ's under the APA, why would it permit so much deference to an agency's "designated official" under the I-205 warrant, which otherwise references final order from a judicial authority. Why would the form need such "judicial" authority if the agency can just authorize? https://www.ice.gov/sites/default/files/documents/Document/2017/I-205_SAMPLE.PDF
Of course, this is just part of the playing for time playbook; changing the facts on the ground until the law belatedly catches up. This Administration has proven the law is not the guardrail that was presumed under regular order.
The use of the term “warrant”—which most of the public understands to be a judge-signed document—to describe an ICE employee-signed form creates tremendous confusion and opportunities for 4A rights being violated.
So, judges and Congress, stop DHS from using the term “warrant” to describe these administrative documents. We got one set of Miranda warnings. One kind of “whole” milk, champagne, dollar bill, and aspirin. Do us a favor—stop the confusion.
A search warrant is different from an arrest warrant & they involve different permissible actions on the part of law enforcement. It is likely most people also don't understand that.
This seems to go along with calling immigration judges "judges".
Steve, I agree with most of your arguments. I was trying to think through other situations where non-citizens are determined to have other than full Constitutional rights. Voting is one. The Second Amendment is not available to individuals unlawfully present in the United States, by federal law.
However, it seems to me that the immigration laws themselves with regard to processing claims by individuals seeking asylum or refugees, strongly suggest that Congress has determined that non-citizens have Fifth Amendment rights to Due Process and Eighth Amendment rights regarding cruel and unusual punishment. The courts have also recognized Fourth Amendment rights prohibiting search of an individual's property without a judicial warrant for non-citizens, albeit in another country.
It seems to me that the General Counsel has written an opinion piece that agrees with current policy, not established law.
Just curious. How would you suggest dealing with the situation you described as a Third factor, i.e.,:
"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."
Is it your suggestion that failing to show up for various due process hearings provides a "[Stay] out of jail" card since the defendant doesn't have notice of the proceedings?
How do you propose providing notice when the defendant has provided no or false contact information?
Steve, I greatly appreciate your persistence and promptness in keeping up with, exposing, and explaining the federal government's increasingly insane and outrageous attacks on the foundational values and principles of our Republic. Justice Alito seems fond of referring to British legal opinions during the colonial era, notoriously in the Court’s 2022 Dobbs decision which overturned Roe v. Wade. May we anticipate that he will refer to the use of writs of assistance, or general warrant-free search warrants utilized by British soldiers and custom officials in pre-Revolutionary Boston (1760s-1770s), authorizing them to search any home or ship for smuggled goods without probable cause, as evidence that the right to a zone of privacy is more limited by the Fourth Amendment or “not as deeply rooted in the Nation's history and traditions" as we might naively think and hope?
Judge Thapar recently argued that basically none of the protections in the Bill of Rights apply to non-citizens. I think that’s pretty clearly incorrect, but this administration has done crazier things on flimsier legal bases (see Nov. 2020 to Jan. 2021), so this should be more than enough for them to claim at least a veneer of legitimacy.
https://www.reuters.com/legal/government/trump-appointed-judge-argues-us-constitutions-rights-do-not-extend-non-citizens-2025-12-16/
The definition of "fugitive" in both state & federal statutes means being charged with a crime or having escaped from custody in one jurisdiction & located in another. I could be wrong, of course, b/c the law for deportation may define the word differently, but having a deportation order is not a criminal charge nor does it involve escape. Law enforcement may not treat one subject to a civil order as they would treat a fugitive.
Please talk about the decision in one sentence by the eighth circuit or appellate to overrule what the district judge (Menendez?) said about use of violence in Minnesota.
I have not seen any writings about this decision and definitely about the effect of allowing ICE to continue what they’re doing.
Professor, although I guess it’s nice to see 9-0 decisions, I’ve always heard that SCOTUS takes only the knottiest cases. But they can’t be so tough if all nine justices agree. Of course, I’m not talking about cases where the Court has original jurisdiction. What am I not understanding?
SCOTUS no longer considers itself bound to decide its Constitutionally assigned "original Jurisdiction" cases. I.e., it no longer itself adheres to supporting the Constitution. The Justices' oath or affirmations are ignored with total impunity BECAUSE CONGRESS PERMITS IT. (See 22-387 for 1 instance)
🔥 The Trump–Deep State Playbook 99% Will Never See
Everyone argues surface politics. Nobody sees what actually decided 2024: the invisible war machine behind both.
⚡ How Trump weaponized rage against the permanent system🎯 Why the unelected nexus doesn't care which party wins📋 The complete playbook—hidden in plain sight
Built from hard OSINT: Pew • Lochner • FDR • Mueller
This is the classified briefing. Not commentary.
Miss this → everyone else stays blind while you ask: "How did I not see this coming?"
↻ Restack so others see
Geopolitics In Plain Sight – The picture 99% never get
https://open.substack.com/pub/geopoliticsinplainsight/p/us-2024-elections-trump-vs-the-deep?r=72pxma&utm_campaign=post&utm_medium=web
The DHS General Counsel relies on the Supreme Court case of Abel v. United States. That case is a little complicated, but seems to give some support to the notion that administrative warrants may be used to arrest illegal aliens in their homes.
Adding to the first two fallacies about warrants, they've broken into homes/churches/businesses of citizens on the basis of hiding "illegal" immigrants.