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 commandment 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, all the limitations on the powers of our public servants.
According to at least one person who knew what he was talking about, the very kind of searches and seizures at issue here gave birth to the fight for independence.
John Adams (one of the most active and enlightened revolutionary leaders and one of the most active authors of the Declaration of Independence) saw the American Revolution as beginning in earnest in a courtroom in Boston in 1761, when James Otis, Jr., famously and vigorously argued in court against the oppression and tyranny that necessarily flowed from searches and seizures under writs of assistance.
Otis's client lost, but we all won. John and Samuel Adams and a multitude of other American patriots were enlightened and inspired by Otis’s constitutional arguments. In 1817, John Adams highlighted, “American Independance was then and there born. The seeds of Patriots and Heroes . . . were then and there sown. Every man of an immense crowded Audience [who heard Otis’s arguments] appeared to me to go away, as I did, ready to take up Arms [ ]. Then and there was the first scene of the first Act of Opposition to the arbitrary Claims of Great Britain. Then and there the child Independance was born."
Some of the language that was most inspiring then (and most relevant now) includes this:
"This [ ] is the worst example of arbitrary power imaginable. It appears to me the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever was found in an English law-book." This action by our government "leaves some of our most cherished liberties to the whims of petty officials."
In a nutshell, Otis was arguing (and people were fighting mad) about searches and seizures without the process of law that the people thought was due. Their fight led to our Fourth Amendment (and Fifth Amendment Due Process Clause).
As Chief Justice Rehnquist writing for SCOTUS in United States v. Verdugo-Urquidez highlighted:
"The driving force behind the adoption of the [Fourth] Amendment, as suggested by Madison's advocacy, was widespread hostility among the former colonists to the issuance of writs of assistance empowering revenue officers to search suspected places for smuggled goods, and general search warrants permitting the search of private houses, often to uncover papers that might be used to convict persons of libel."
"The available historical data show, therefore, that the purpose of the Fourth Amendment was to protect the people of the United States against arbitrary action by their own Government." That threat to us and our liberty is no less real and tangible merely because ICE agents say they're searching homes for people who aren't citizens.
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.
They used to be called "special inquiry officers" but that isn't fancy sounding enough I guess. I wouldn't even go as far as implying that they are impartial arbiters in any sense as arbiters since they occupy a position as the apotheosis of public choice theory. They definitely aren't ALJs and while non-ALJ adjudicators aren't uncommon, those that implicate liberty interests certainly are since most similarly situated adjudicators are Patent Examiners and if the formal procedures that dictate ALJ hiring still result in the SEC pretty much never losing in front of one, well, without any process, discretion, or pretension of fairness, maybe they're just Examiners too?
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?
Benny, the People (not Congress) determined that non-citizens have Fifth Amendment rights to Due Process and that they cannot be subjected to cruel and unusual punishments. That's why the Fifth Amendment starts with the words "No person" (instead of referring to rights of "the people") and the Eighth Amendment doesn't at all even mention people or persons.
The Fourth Amendment does expressly refer to "the people," which seems to be an allusion to citizens. But the right that is expressly secured is not merely property rights, i.e., "The right of the people" to "their persons, houses, papers, and effects." Instead, it is "[t]he right of the people" to be "secure in their persons, houses, papers, and effects." As current events are proving, even we citizens are not and cannot be secure in our own persons (our own lives and our own safety) or our own homes if all persons in the U.S. aren't equally secure.
Ensuring everyone is secure against searches and seizures that we would consider unreasonable if used against us is consistent with the history of the 1791 Fourth Amendment (and the 1788 Constitution and the 1776 Declaration of Independence). As Chief Justice Rehnquist writing for SCOTUS in United States v. Verdugo-Urquidez highlighted:
"The driving force behind the adoption of the [Fourth] Amendment, as suggested by Madison's advocacy, was widespread hostility among the former colonists to the issuance of writs of assistance empowering revenue officers to search suspected places for smuggled goods, and general search warrants permitting the search of private houses, often to uncover papers that might be used to convict persons of libel."
"The available historical data show, therefore, that the purpose of the Fourth Amendment was to protect the people of the United States against arbitrary action by their own Government." That threat to us and our liberty is no less real and tangible merely because ICE agents say they're searching homes for people who aren't here legally.
Jack, thanks for the unnecessary 4th Amendment discussion.
Congress, not "the people" wrote the immigration statutes. That is what I was referring to.
With regard to the 4th Amendment, the issuance and execution of administrative warrants by ICE since it was formed in 2003 and before that beginning in 1952 by INA and INS. These warrants are authorized by Congress under 8 USC 1226(a) and 8 USC 1357(a). Beginning in 2017 these warrants have been subject to litigation but have been upheld as constitutional provisions.
It appears to me that your argument and Steve's argument is that these warrants are unconstitutional in that they allow searches and arrests in violation of the 4th Amendment. The courts, so far, have not agreed.
I found this interesting discussion regarding these form I-200 and I-205 warrants on Findlaw at (https://www.findlaw.com/legalblogs/law-and-life/209638/) What this information indicates is that these administrative warrants DO NOT permit unconsented searches of private property, i.e., ICE cannot go into a private residence without permission. These warrants also do not authorize search for evidence or seizure of evidence. Those searches would require a judicial warrant. Thus, an administrative warrant only allows arrest of an individual in a public place or with the consent of a private property owner or resident to enter the property.
As I understand the process, an ICE official signs an I-205 administrative warrant, individualized as to a named individual, only after a final order of removal.
I still have not gotten a handle on Steve's argument that these warrants should be prohibited for use against individuals who are not aware that a final order of removal has been issued. If they are not aware, that would usually indicate they have not attended the various hearings and have not given any current contact information to immigration authorities. I don't know how you would issue a warrant for removal against a person when you don't know where to locate them.
Benny, I didn't doubt you were referring to a statute. My point was that the statute merely reflected the more important and more powerful proscription by the People in our Constitution. Too often, people present the words of mere legislatures or mere judges instead of the true governing legal authority (the Constitution). Too often, the words of mere legislatures or mere judges are inconsistent with the Constitution.
As for judges purportedly saying that these so-called warrants are not unconstitutional, I'm not familiar with any particular decision. So I'll just say that many times judicial judgments don't mean what people say they mean, and too often, judicial opinions don't say what people say they say. In addition, judges offer a bevy of purported justifications for violating controlling legal authority (especially the Constitution). They may cite so-called doctrine or purported precedent. Or they may simply blame the parties for not presenting the constitutional issue(s) quite the right way. Whatever the purported justification, too often judicial decisions or opinions are strikingly inconsistent with the Constitution.
I don't understand your assumption that the government doesn't know where to find these people. Isn't the point here at least in part that ICE is breaking into people's homes or at least going to people's homes to arrest them? Personally, I'm particularly concerned with ICE breaking into people's homes without a warrant signed by a judge. https://www.msn.com/en-us/news/us/video-shows-ice-breaking-into-home-guns-drawn-without-warrant/ar-AA1U3I5m.
Law enforcement officers who actually obtain a real warrant, who actually live near the residences they're raiding, and who have only qualified immunity too often get things wrong (including raiding the wrong residence) or do things wrong. ICE officials who are (1) from out of town, (2) don't even bother with a real warrant and (3) are being told by their leaders that they have absolute immunity are considerably more likely to get things wrong or do things wrong. That's part of why I think ICE conduct purportedly supported by these so-called warrants is unconstitutional.
Benny, it seems maybe you didn't understand the point of my Fourth Amendment analysis. The point isn't merely whether to protect people who are here illegally. The point the Fourth Amendment makes pretty clearly is that the protection is for all of us who are here legally. ICE arresting, detaining or killing people who are actual citizens proves my point (and the principle at issue in the Fourth Amendment). Our right is to be secure, and we cannot be secure if Trump, Noem, Kash and Bovino are telling ICE they can arrest or detain people or break into their homes in ways that is not constitutional when done to Americans.
Have you considered the videos of the killings of Good and Pretti? I have, and what I saw was murder (both times).
If you're asking (at this late point) about arrests or detention of U.S. citizens, I think it's safe to say you're just not looking for evidence. It has been covered repeatedly.
I have seen those videos, read numerous articles, done a lot of research on the various laws involved. What I have not seen is the results of the investigations which look at the evidence.
Benny, maybe you misunderstood the point of "one cannot be a fugitive from an order of which they have no notice." It's not about merely "failing to show up." Being a fugitive from an order (actively fleeing the consequences of the order) necessarily means the person knows about (had notice of) the order.
You didn't ask me and I'm not a lawyer, but one possibility is this: if immigration agents find the illegal alien in question, they have to treat him or her as they would do when a final order of removal is issued and it's possible to inform the illegal alien of the order. They could then proceed as they do in the "normal" case when the alien was promptly informed. One flaw with that approach is that it would motivate some illegal aliens to go into hiding to avoid delivery of a final order of removal.
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?
As the French say, Plus ca change, plus c'est la meme polemique. Positions about abortion and foetal rights have varied widely - Ancient Greece, Rome, or Assyria did not consider the foetus to be alive and therefore to have human rights. In contrast, ancient Persians valued the foetus as a living person equal to others. Accordingly, they brought laws against abortion, even in cases of sexual abuse. Furthermore, abortion was considered to be a murder and punishments were meted out to the mother, father, and the person performing it. I assume that today's "Pro-Lifers" will be happy to be lumped with Persia aka Iran. I see that after a new university policy at Texas A&M banning "race or gender ideology", a philosophy professor has been told to remove specific readings from Plato's Symposium from his course, which discuss love, gender and identity. Make America (Not) Greek Again. Or is all this "fake news," which is becoming increasingly indistinguishable from factual but insane or outrageous news?
I read about the Texas A&M professor and teaching Plato. Hard to believe.
On the other hand, present-day liberals are also much less supportive of First Amendment free speech protections than liberals (and perhaps conservatives) were when I was young. I consider the paucity of support for First Amendment free speech protections a real danger, but that's another topic.
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)
I'm butting into your question having no legal expertise, but as one example, I would guess that the Court didn't take Trump v. Anderson (on Colorado's attempt to kick Trump off the ballot as an insurrectionist) because it was knotty; I assume they took it because it was so consequential. The fact that the Court was unanimous on the core judgment indicates that it wasn't an especially difficult decision for them.
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.
I found Orign Kerr's article linked below, which Steve Vladeck cited, very useful for non-experts like myself. Kerr's conclusion (abbreviated) is: "[I]t 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".
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 commandment 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, all the limitations on 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
According to at least one person who knew what he was talking about, the very kind of searches and seizures at issue here gave birth to the fight for independence.
John Adams (one of the most active and enlightened revolutionary leaders and one of the most active authors of the Declaration of Independence) saw the American Revolution as beginning in earnest in a courtroom in Boston in 1761, when James Otis, Jr., famously and vigorously argued in court against the oppression and tyranny that necessarily flowed from searches and seizures under writs of assistance.
Otis's client lost, but we all won. John and Samuel Adams and a multitude of other American patriots were enlightened and inspired by Otis’s constitutional arguments. In 1817, John Adams highlighted, “American Independance was then and there born. The seeds of Patriots and Heroes . . . were then and there sown. Every man of an immense crowded Audience [who heard Otis’s arguments] appeared to me to go away, as I did, ready to take up Arms [ ]. Then and there was the first scene of the first Act of Opposition to the arbitrary Claims of Great Britain. Then and there the child Independance was born."
If you want a reference to Otis's actual arguments, see, e.g., https://constitutioncenter.org/education/classroom-resource-library/classroom/11.7-primary-source-james-otis.
Some of the language that was most inspiring then (and most relevant now) includes this:
"This [ ] is the worst example of arbitrary power imaginable. It appears to me the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever was found in an English law-book." This action by our government "leaves some of our most cherished liberties to the whims of petty officials."
In a nutshell, Otis was arguing (and people were fighting mad) about searches and seizures without the process of law that the people thought was due. Their fight led to our Fourth Amendment (and Fifth Amendment Due Process Clause).
As Chief Justice Rehnquist writing for SCOTUS in United States v. Verdugo-Urquidez highlighted:
"The driving force behind the adoption of the [Fourth] Amendment, as suggested by Madison's advocacy, was widespread hostility among the former colonists to the issuance of writs of assistance empowering revenue officers to search suspected places for smuggled goods, and general search warrants permitting the search of private houses, often to uncover papers that might be used to convict persons of libel."
"The available historical data show, therefore, that the purpose of the Fourth Amendment was to protect the people of the United States against arbitrary action by their own Government." That threat to us and our liberty is no less real and tangible merely because ICE agents say they're searching homes for people who aren't citizens.
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.
FWIW Immigration judge is the statutory job title.
This seems to go along with calling immigration judges "judges".
Right? They should be called something like "DoJ immigration arbiters" or "DoJ immigration magistrates" to clarify their position and authority.
They used to be called "special inquiry officers" but that isn't fancy sounding enough I guess. I wouldn't even go as far as implying that they are impartial arbiters in any sense as arbiters since they occupy a position as the apotheosis of public choice theory. They definitely aren't ALJs and while non-ALJ adjudicators aren't uncommon, those that implicate liberty interests certainly are since most similarly situated adjudicators are Patent Examiners and if the formal procedures that dictate ALJ hiring still result in the SEC pretty much never losing in front of one, well, without any process, discretion, or pretension of fairness, maybe they're just Examiners too?
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?
Benny, the People (not Congress) determined that non-citizens have Fifth Amendment rights to Due Process and that they cannot be subjected to cruel and unusual punishments. That's why the Fifth Amendment starts with the words "No person" (instead of referring to rights of "the people") and the Eighth Amendment doesn't at all even mention people or persons.
The Fourth Amendment does expressly refer to "the people," which seems to be an allusion to citizens. But the right that is expressly secured is not merely property rights, i.e., "The right of the people" to "their persons, houses, papers, and effects." Instead, it is "[t]he right of the people" to be "secure in their persons, houses, papers, and effects." As current events are proving, even we citizens are not and cannot be secure in our own persons (our own lives and our own safety) or our own homes if all persons in the U.S. aren't equally secure.
Ensuring everyone is secure against searches and seizures that we would consider unreasonable if used against us is consistent with the history of the 1791 Fourth Amendment (and the 1788 Constitution and the 1776 Declaration of Independence). As Chief Justice Rehnquist writing for SCOTUS in United States v. Verdugo-Urquidez highlighted:
"The driving force behind the adoption of the [Fourth] Amendment, as suggested by Madison's advocacy, was widespread hostility among the former colonists to the issuance of writs of assistance empowering revenue officers to search suspected places for smuggled goods, and general search warrants permitting the search of private houses, often to uncover papers that might be used to convict persons of libel."
"The available historical data show, therefore, that the purpose of the Fourth Amendment was to protect the people of the United States against arbitrary action by their own Government." That threat to us and our liberty is no less real and tangible merely because ICE agents say they're searching homes for people who aren't here legally.
Jack, thanks for the unnecessary 4th Amendment discussion.
Congress, not "the people" wrote the immigration statutes. That is what I was referring to.
With regard to the 4th Amendment, the issuance and execution of administrative warrants by ICE since it was formed in 2003 and before that beginning in 1952 by INA and INS. These warrants are authorized by Congress under 8 USC 1226(a) and 8 USC 1357(a). Beginning in 2017 these warrants have been subject to litigation but have been upheld as constitutional provisions.
It appears to me that your argument and Steve's argument is that these warrants are unconstitutional in that they allow searches and arrests in violation of the 4th Amendment. The courts, so far, have not agreed.
I found this interesting discussion regarding these form I-200 and I-205 warrants on Findlaw at (https://www.findlaw.com/legalblogs/law-and-life/209638/) What this information indicates is that these administrative warrants DO NOT permit unconsented searches of private property, i.e., ICE cannot go into a private residence without permission. These warrants also do not authorize search for evidence or seizure of evidence. Those searches would require a judicial warrant. Thus, an administrative warrant only allows arrest of an individual in a public place or with the consent of a private property owner or resident to enter the property.
As I understand the process, an ICE official signs an I-205 administrative warrant, individualized as to a named individual, only after a final order of removal.
I still have not gotten a handle on Steve's argument that these warrants should be prohibited for use against individuals who are not aware that a final order of removal has been issued. If they are not aware, that would usually indicate they have not attended the various hearings and have not given any current contact information to immigration authorities. I don't know how you would issue a warrant for removal against a person when you don't know where to locate them.
Benny, I didn't doubt you were referring to a statute. My point was that the statute merely reflected the more important and more powerful proscription by the People in our Constitution. Too often, people present the words of mere legislatures or mere judges instead of the true governing legal authority (the Constitution). Too often, the words of mere legislatures or mere judges are inconsistent with the Constitution.
As for judges purportedly saying that these so-called warrants are not unconstitutional, I'm not familiar with any particular decision. So I'll just say that many times judicial judgments don't mean what people say they mean, and too often, judicial opinions don't say what people say they say. In addition, judges offer a bevy of purported justifications for violating controlling legal authority (especially the Constitution). They may cite so-called doctrine or purported precedent. Or they may simply blame the parties for not presenting the constitutional issue(s) quite the right way. Whatever the purported justification, too often judicial decisions or opinions are strikingly inconsistent with the Constitution.
I don't understand your assumption that the government doesn't know where to find these people. Isn't the point here at least in part that ICE is breaking into people's homes or at least going to people's homes to arrest them? Personally, I'm particularly concerned with ICE breaking into people's homes without a warrant signed by a judge. https://www.msn.com/en-us/news/us/video-shows-ice-breaking-into-home-guns-drawn-without-warrant/ar-AA1U3I5m.
Law enforcement officers who actually obtain a real warrant, who actually live near the residences they're raiding, and who have only qualified immunity too often get things wrong (including raiding the wrong residence) or do things wrong. ICE officials who are (1) from out of town, (2) don't even bother with a real warrant and (3) are being told by their leaders that they have absolute immunity are considerably more likely to get things wrong or do things wrong. That's part of why I think ICE conduct purportedly supported by these so-called warrants is unconstitutional.
Benny, it seems maybe you didn't understand the point of my Fourth Amendment analysis. The point isn't merely whether to protect people who are here illegally. The point the Fourth Amendment makes pretty clearly is that the protection is for all of us who are here legally. ICE arresting, detaining or killing people who are actual citizens proves my point (and the principle at issue in the Fourth Amendment). Our right is to be secure, and we cannot be secure if Trump, Noem, Kash and Bovino are telling ICE they can arrest or detain people or break into their homes in ways that is not constitutional when done to Americans.
Do we have evidence that the ICE agents, or other federal law enforcement officials, are doing that?
Have you considered the videos of the killings of Good and Pretti? I have, and what I saw was murder (both times).
If you're asking (at this late point) about arrests or detention of U.S. citizens, I think it's safe to say you're just not looking for evidence. It has been covered repeatedly.
I have seen those videos, read numerous articles, done a lot of research on the various laws involved. What I have not seen is the results of the investigations which look at the evidence.
Benny, maybe you misunderstood the point of "one cannot be a fugitive from an order of which they have no notice." It's not about merely "failing to show up." Being a fugitive from an order (actively fleeing the consequences of the order) necessarily means the person knows about (had notice of) the order.
You didn't ask me and I'm not a lawyer, but one possibility is this: if immigration agents find the illegal alien in question, they have to treat him or her as they would do when a final order of removal is issued and it's possible to inform the illegal alien of the order. They could then proceed as they do in the "normal" case when the alien was promptly informed. One flaw with that approach is that it would motivate some illegal aliens to go into hiding to avoid delivery of a final order of removal.
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?
Good point, but the majority in Roe v. Wade went all the way back to ancient Greece, Rome, and Persia. They get the grand prize.
As the French say, Plus ca change, plus c'est la meme polemique. Positions about abortion and foetal rights have varied widely - Ancient Greece, Rome, or Assyria did not consider the foetus to be alive and therefore to have human rights. In contrast, ancient Persians valued the foetus as a living person equal to others. Accordingly, they brought laws against abortion, even in cases of sexual abuse. Furthermore, abortion was considered to be a murder and punishments were meted out to the mother, father, and the person performing it. I assume that today's "Pro-Lifers" will be happy to be lumped with Persia aka Iran. I see that after a new university policy at Texas A&M banning "race or gender ideology", a philosophy professor has been told to remove specific readings from Plato's Symposium from his course, which discuss love, gender and identity. Make America (Not) Greek Again. Or is all this "fake news," which is becoming increasingly indistinguishable from factual but insane or outrageous news?
I read about the Texas A&M professor and teaching Plato. Hard to believe.
On the other hand, present-day liberals are also much less supportive of First Amendment free speech protections than liberals (and perhaps conservatives) were when I was young. I consider the paucity of support for First Amendment free speech protections a real danger, but that's another topic.
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)
I'm butting into your question having no legal expertise, but as one example, I would guess that the Court didn't take Trump v. Anderson (on Colorado's attempt to kick Trump off the ballot as an insurrectionist) because it was knotty; I assume they took it because it was so consequential. The fact that the Court was unanimous on the core judgment indicates that it wasn't an especially difficult decision for them.
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.
I found Orign Kerr's article linked below, which Steve Vladeck cited, very useful for non-experts like myself. Kerr's conclusion (abbreviated) is: "[I]t 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".
https://reason.com/volokh/2026/01/22/can-ice-enter-a-home-to-make-an-arrest-with-only-an-administrative-warrant/
Adding to the first two fallacies about warrants, they've broken into homes/churches/businesses of citizens on the basis of hiding "illegal" immigrants.
What recourse do people have against this 4th amendment violating policy?
Do they have to wait until their door is broken down and then individually sue, or is there something that can be done proactively?