Fourth Amendment rights threatened by ICE policy
By: Elana Fogel and Kate Evans (The Hill)
Anyone beginning to see why the DEI arguments against 'Originalism' were bad ideas? The DEI Constitutional scholars asserted the need for a "living document" that could simply be reinterpreted according to political priorities and set aside when necessary to achieve political goals. Originalism was an outmoded, racist obstacle to achieving the DEI political goals.
The Trump administration has certainly reinterpreted the Constitution according to Trump's political priorities and goals. Trump is putting the DEI Constitutional theories into practice. How does every like that "living document" idea now?
S E E D E D C O N T E N T
In the wake of Alex Pretti's killing, congressional Democrats and Republicans have agreed to open negotiations on how to impose restrictions on ICE enforcement. Those restrictions must include strict limits on agents' ability to use force against protesters, monitors and the people they are detaining. The restrictions must also ensure that immigration officials abandon a new policy that would allow agents to bring the violence we are seeing in the streets into our homes.
There are few rights more fundamental to life in America than the promise that the government cannot come barging into your home. Not, at least, without first explaining to a detached and neutral judge why they need to. And yet, in a memo leaked to the Senate last week, ICE made clear its intent to do just that.
ICE cannot rip up the Fourth Amendment to make its job easier.
The memo, from Acting ICE Director Todd Lyons, acknowledges that "the U.S. Department of Homeland Security has not historically relied on administrative warrants alone to arrest aliens subject to final orders of removal in their place of residence" before determining that ICE immigration officers may now do so. Officers are ordered to perform a "knock and announce" but authorized, "should the alien refuse admittance," to enter by force.
Constitutional law is complicated in many areas. This is not one of them. The Fourth Amendment protects us from unreasonable law enforcement actions, and that applies especially to the sanctity of our homes. Government agents cannot invade our homes except in rare, well-grounded and legally accepted situations.
The law recognizes that crime-fighting and investigation are high-stakes activities. To protect against the enthusiasm and aggression that can be part of "the competitive enterprise of ferreting out crime," we call in a judge to act as referee. The warrant process requires that a neutral authority — a sworn judge or magistrate — reviews the justification for seeking an identified target and is satisfied that the person sought will be in the home.
The neutrality requirement is key here: the warrant decision must be made by a judge who does not work for the same law enforcement agency that is making the request. The leaked memo seeks to circumvent the inconvenience of neutral judicial review by asserting, wrongly, that a removal order signed only by an administrative judge is good enough to justify entry into a person's home to arrest them.
The law, rightfully, regards our homes as our most protected space. The legal right to forcefully defend your home from an intruder, often called the Castle Doctrine, is so embedded in our national values that nearly every state has recognized it by statute.
We work with clients facing both criminal enforcement by police and in the civil immigration system that employs ICE; we see, every day, the individual and collective consequences of law enforcement tactics that violate our constitutional rights. Now, ICE is going beyond coopting local policing for immigration purposes to ignore the Fourth Amendment altogether.
Though ICE has long relied on its own administrative warrants to authorize arrests in public, it now seeks to expand its authority and give ICE officers power to force their way into a private home to make an arrest. But ICE warrants are not judicial arrest warrants. They are forms filled out and signed by employees of ICE in a completely internal process. The agency lacks the legal authority to avoid the Fourth Amendment's requirement that they must first get a judicial warrant — a federal judge in California has already ruled as much.
There are limited exceptions to the general requirement that law enforcement needs a warrant before entering our homes. Importantly, these rules and exceptions apply in the unique circumstances created by emergencies in criminal cases. Immigration enforcement is civil. Would we accept an IRS accountant crawling into our home office window? The DMV breaking into our garages?
Recent headlines include accounts of lethal violence and of U.S. citizens mistakenly arrested by immigration officers. Even Vice President Vance acknowledged that occasionally "these guys … are not doing everything right." Without the safeguards of neutral review for the reasonableness of government action and accuracy of the information ICE is relying on, we can expect to see more cases of mistaken identity and arrest.
This bold attempt to avoid judicial oversight on ICE enforcement tactics will not be the end. In a footnote of the leaked memo, ICE unequivocally reserves the right to expand this practice in the future, authorizing officers to enter homes "prior to a final order of removal or where there is a final order of removal issues by an immigration officer" rather than a judge. Rule of law relies on rational policy and government restraint. Certainly, accountability in the courts can follow, but paper copies of the Fourth Amendment don't stop a battering ram — law enforcement officers' adhering to the constitutional limits of their authority does.
Congress retains the power to control the targets and methods of ICE. Our lawmakers must step up and stop the violence in our communities and safeguard the constitutional protection of our homes, now.
Elana Fogel is an associate clinical professor of law and the director of the Criminal Defense Clinic at Duke, Law.Kate Evans is a clinical professor of law and director of the Immigrant Rights Clinic at Duke Law.
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Yes, Originalism makes governing messy and reforms slow. But the alternative is a "living document" that allows someone like Trump to change the rules on the fly.
Trump really is putting DEI legal theories into practice to pursue his own political agenda. Trump is using the DEI legal arguments against DEI. Still support the advocacy for a "living document"?