Democrats think they have the whip hand in a fight over a DHS funding bill ahead of a potential government shutdown, and one of their demands is to require federal agencies to obtain a judicial warrant for immigration arrests. This is an attempt to kneecap ICE’s ability to perform its job, with other significant downsides.
Normally ICE relies on administrative warrants, or warrants approved by DHS officers rather than a federal district or state court. Unlike criminal law enforcement, immigration enforcement invariably involves aliens who do not have the full array of constitutional protections. Courts have thus left it to the political branches, with limited judicial intrusion. Congress provided the executive branch the authority to issue these warrants in an immigration reform, signed into law by President Clinton in 1996, that cut district courts out of the removal process by which aliens are deported from the United States. This allows the government to act quickly when immigration officers encounter a deportable alien. Yet, there is extensive due process for the alien: An arrest warrant prompts a hearing before an immigration “judge” (a Justice Department official) at which the alien can present evidence and raise legal claims; if the judge issues an order of removal, the alien can appeal to DOJ’s Bureau of Immigration Appeals; losing there, the alien may petition for review by a federal Circuit Court of Appeals, and then to the Supreme Court.
We welcome the long-overdue recognition by Democrats that administrative tribunals are not real courts of law. Yet, such warrants have a long history in this area precisely because immigration warrants are not meant to be adversarial trials and involve actions that are civil, not criminal, in nature.
Democrats clearly think that requiring a judicial warrant will slow ICE down by burying it in paperwork — there’s a reason that sanctuary jurisdictions tend to demand judicial warrants from immigration authorities. And they also surely believe that frankly partisan judges on the courts will either prevent or slow-walk what would otherwise be entirely appropriate arrests and deportations. Delays obviously increase the chance that deportable aliens will flee.
Also, there are only about 700 active district court judges in the entire country. Requiring a warrant from one of them for each potential immigration arrest means absolutely burying these judges in warrant requests, and affecting their personal lives, too. ICE agents assigned to these tasks would presumably be able to call these judges day and night whenever they had a tip identifying an alien’s whereabouts and reason to suspect they might move location soon. In Minneapolis, district judges are openly complaining right now about a raft of habeas corpus petitions filed by aliens the administration is trying to remove; that is just a fraction of the onus that a judicial-arrest-warrant requirement would impose.
The federal bench, which already tends to give immigration appeals the back of its hand, will hate this.
Again, judicial warrants have never before been required for initiating deportations. This is both a novelty, and a potentially destructive one. It demonstrates once again that every time the Democrats try to facilitate and normalize lawlessness, the chaotic effects have a tendency to metastasize and spread. In this case, they’d be aiming for ICE, and the judiciary would be collateral damage.
Editor’s note: This editorial has been updated to clarify the distinction between warrant and order.