Immigration and Customs Enforcement (ICE) is pushing a new home-entry rule, one Americans might have thought they left behind in the old world. A whistleblower recently exposed an internal memo from ICE’s acting director, claiming that once an immigration judge — an employee of the executive branch — signs a final order of removal for someone, ICE agents may use that order (and their own administrative paperwork) to legally enter private homes to effect an arrest — all without ever asking an independent judge for a warrant.
The Fourth Amendment was written for this exact moment. One of the major causes of the American Revolution was the practice of British officers using similar executive-authorized papers to enter colonists’ private homes. When the Framers enacted the Bill of Rights, they drew a bright line at the front door of the home — and said government may not sign its own paperwork to enter. In a free society, you can shut your door, and the state cannot force it open on its own say-so.
Crucially, this holds true no matter why the state wants to come in. The Supreme Court has never blessed letting an agency-issued immigration form substitute for an independent judge’s warrant to enter an occupied home. That is why the most important word in this debate is also the most misleading one: “warrant.”
Warrants Require Independent Judgment and Probable Cause
A valid search warrant isn’t just a piece of paper with an official seal. It’s an authorization saying there is probable cause for the government to act. Probable cause is not certainty, but it is not a hunch; it is a set of specific facts that would lead a reasonable person to believe government agents will find the person they seek, or evidence of a particular crime, in the place they want to enter.
The Supreme Court has long held that the Fourth Amendment’s “protection consists in requiring” that the person deciding whether such probable cause exists be a “neutral and detached magistrate,” rather than an “officer engaged in the often competitive enterprise” of law enforcement. So the person deciding whether the government may intrude cannot be the same person — or on the same team — as the person seeking the warrant. The Court drove that point home in Coolidge v. New Hampshire, where it invalidated a warrant issued by the state attorney general, who clearly was not neutral as to investigations his office was conducting.
The Fourth Amendment demands neutrality precisely because the risk of error is so predictable and commonplace. For example, in Martin v. United States, an FBI SWAT team forced their way into an innocent family’s home and pulled a gun on their seven-year-old son before realizing they were in the wrong place. Other examples (unfortunately) abound, since officers can have the right person in mind but the wrong location, or have the right location but the wrong idea about who lives there. By requiring a neutral judge sign off on a search warrant — in advance — the Fourth Amendment acts to keep officers from turning a guess into a home invasion.
Administrative search warrants provide none of this security. They are issued by officials in the very agency seeking to conduct the search or seizure, meaning the government agents are directly signing off on the integrity of their own work. And when that happens, there is great cause to fear that the agency will cut corners in a way they could not if probable cause must be found by an independent judge.
In City of Ontario v. Quon, the Court stressed that the Fourth Amendment applies “without regard to whether the government actor is investigating crime or performing another function.”
Administrative “Warrants” Exist In Immigration, But They Are Not Fourth Amendment Warrants
Removal is generally a civil process, and agencies have long used administrative warrants to arrest immigrants for removal proceedings. DHS claims these warrants are “recognized by the Supreme Court,” implying that immigration enforcement somehow runs on a different constitutional track. But that is not so: In City of Ontario v. Quon, the Court stressed that the Fourth Amendment applies “without regard to whether the government actor is investigating crime or performing another function.”
So a “civil” process cannot mean “Constitution-lite” at the front door. If the Constitution enacts strict limits before officers enter a home in the criminal law enforcement context, then the same must be true when the government is pursuing civil immigration enforcement.
Yet that is the leap ICE (and its defenders) ask the public to accept. That they can take an agency form that authorizes them to detain an immigrant and treat it like a judge-issued warrant to justify entering a residence without consent. In support, they often cite the 1960 Supreme Court decision Abel v. United States, but in that case, agents did not use an administrative warrant as a constitutional key to an occupied home.
Yes, Abel involved an administrative deportation warrant. But that’s where the similarities end. Abel was arrested in a hotel room, and the later, warrantless search at issue occurred — with hotel management’s consent — after he checked out, vacated the room, and paid his bill, with agents collecting items Abel had left behind. The Court upheld that later search as reasonable because the hotel had regained control of the room and Abel had abandoned the property seized.
Therefore, Abel stands for a narrower proposition: administrative warrants may support certain civil immigration arrests and incidental searches of abandoned-property facts in a relinquished hotel room. It does not stand for ICE’s sweeping claim that an executive agency may issue its own “warrant” and then use it to cross a home’s threshold.
The Fourth Amendment Protects Our Homes Against Unreasonable Government Intrusion
The Supreme Court’s modern home-entry rule comes from the landmark 1980 case Payton v. New York. There, the Court held that police generally may not make a warrantless, nonconsensual entry into a suspect’s home to effect a routine felony arrest. The Court emphasized that the “physical entry of the home” is the “chief evil” the Fourth Amendment targets. Although the Court held that law enforcement officers may enter a suspect’s own home with an arrest warrant to make an arrest, they must have reason to believe he is inside.
So, Payton says that where police have a judicial arrest warrant, they need not have a separate search warrant before entering the suspect’s own home. But ICE administrative warrants are not judicial warrants. They do not issue from a “neutral and detached magistrate.” They simply are not the kind of warrant Payton said would authorize entry.
And even when officers have that kind of judge-issued warrant, it still will not authorize them to enter a third party’s home to look for that suspect. In Steagald v. United States, the Supreme Court held that — absent consent or exigent circumstances — law enforcement must first obtain a search warrant before entering a third party’s residence to arrest the person named in the arrest warrant. Although an arrest warrant authorizes the government to seize a person, it alone does not justify invading the third-party homeowner’s security. Instead, the government must persuade a neutral and detached magistrate that they have probable cause to search the third party’s home for the suspect.
ICE’s tactic is to lean on criminal-law doctrines while stripping out the criminal-law safeguards. It borrows Payton’s language about “arrest warrants” to suggest that an immigration warrant can function the same way. But as Steagald shows, even a judicial arrest warrant is not enough to enter a third party’s home. An ICE administrative “warrant” is weaker still. Because it issues from inside the executive branch rather than from a neutral magistrate, it cannot credibly be treated as a constitutional substitute for entering a dwelling.
That is why Institute for Justice attorney Patrick Jaicomo has described these documents as “not a warrant at all,” but “a warrant-shaped object.” With them, the government uses the term “arrest warrant” to enter homes, knowing that most people will be intimidated and are likely to comply. All while it avoids the constitutional friction that makes a real warrant meaningful.
Nonetheless, Speaker Mike Johnson defended the practice, claiming that requiring judicial warrants would add another “layer” and make enforcement harder. Speaker Johnson is right: the Fourth Amendment exists to slow the government down at the very moment it feels most certain. It exists because officials have always been tempted by shortcuts, and history has shown that the most dangerous shortcut is a general-warrant mindset that lets agents be a law unto themselves by searching first and justifying later (if ever).
A free society depends on feeling secure that the government won’t break down your door without good cause and independent permission. So the real choice is not “enforce the law” versus “follow the Constitution” — after all, immigration enforcement for decades has operated consistent with the Fourth Amendment. It is whether we let the executive escape the Fourth Amendment by redefining a “warrant” into a self-issued permission slip. To do so would be to erode one of the most fundamental rights in a free society: the right to be secure in your home from arbitrary government intrusion.
