Immigration and Customs Enforcement has reportedly issued a memorandum that authorizes its agents to enter private residences forcibly without a judicial warrant.
James Percival, the general counsel for the Department of Homeland Security, recently defended the department’s policy and wrote that “deep-state actors in the federal government have for decades told ICE officers that they may not enter a fugitive alien’s home even with a final order of removal and administrative warrant.”
We disagree.
We previously sat in the seat he now occupies, serving in both Republican and Democratic administrations; this is not a partisan issue.
We disagree not only with Mr. Percival’s position but also with his characterization of lawyers at the Department of Homeland Security and elsewhere who seek to uphold the rule of law.
It is not the so-called deep state that has restrained ICE from entering homes using only administrative warrants. It is the Fourth Amendment to the Constitution — and the lawyers who took an oath to support and defend it.
We worked with thousands of homeland security lawyers. They sought to ensure that the department’s actions are lawful and protect the constitutional rights of the people its agents encounter in day-to-day operations.
Attempting to tarnish department attorneys as “deep state” operatives for giving legal advice that is faithful to the Constitution is not only offensive but also dangerous. It sends a message: If you give your best professional advice and urge the department to respect the law, you will be attacked for doing your job.
The job of the general counsel is not to provide convenient legal cover or constitutional workarounds. It is to provide sound legal analysis and advice, even when that advice may be inconvenient for the administration.
Often that involves partnering with internal clients to find lawful ways to carry out department policies. Sometimes, however, that means advising that a policy is unlawful. That is not sabotage; it is upholding the rule of law.
The Fourth Amendment has long protected the sanctity of the home. Courts have consistently held that law enforcement must clear a high constitutional bar before crossing that threshold.
A warrant signed by a judge who is independent of the executive branch is a constitutional safeguard that separates legitimate law enforcement from arbitrary government power.
This bedrock principle applies with equal — if not greater — force when the government is merely enforcing a civil immigration order.
Today the Department of Homeland Security seeks to justify forcible home entries on the basis of administrative warrants — warrants issued by the executive, not the judicial branch.
While Mr. Percival and the department have not made clear which cases, if any, they are relying on, at least one analysis speculates that they are using a mere nonbinding observation from a 1960 Supreme Court case.
However, the weight of subsequent Supreme Court authority strongly supports the view that a judicial warrant is required for such entry — a view reflected by the Federal District Court judge in Texas who ordered the release on Saturday of 5-year-old Liam Conejo Ramos and his father from immigration custody.
