As surges of Immigration and Customs Enforcement (ICE) activity continue to impact communities around the country, including Lewiston, the legal basis behind what ICE officers can and cannot do has become increasingly elusive.
Recently, ICE has come under fire for its use of administrative warrants in place of judicial warrants to justify entering homes and arresting individuals without judicial authorization. In fact, an internal memo from the Acting Director of ICE, released last week, claimed that ICE officers do not require warrants of any kind if they believe the targeted individual is “likely to escape.”
Understanding the difference between administrative and judicial warrants helps determine the implications of these changes. To get some answers, The Student sat down with Dr. Stephen Engel, professor of politics at Bates whose specializations include constitutional law and American political development. Our conversation covered the historical uses of judicial vs. administrative warrants and what ICE’s general disregard of due process tells us about the current and future state of the American legal system.
What distinguishes an administrative warrant from a judicial warrant?
Dr. Engel: What I’ve understood is that the government must prove it has probable cause to a judge in order for the judge to sign a warrant which would be used to enter into someone’s home to search and possibly seize evidence of a crime. That’s really important in the ICE context, because being an undocumented person in the United States alone is not a crime. It’s a civil offense, but it is not a criminal offense.
An administrative warrant can only be authorized by an executive branch official, and may be authorized by an immigration judge, in my understanding. But it’s important to understand that immigration judges are not in the judiciary; even though “judge” is in their name, an immigration judge is actually part of the executive branch. I could make an argument that an administrative warrant is unconstitutional because it violates this theory of the Constitution that no one branch can fully execute and take away someone’s life, liberty or property on their own.
Can you briefly describe the constitutional amendments, specifically the Fourth and Fifth amendments, and branches of government involved in the issuing of these warrants?
Dr. Engel: These [amendments] each cluster together around the concept of due process. The actual due process clause is within the Fifth Amendment, guaranteed to “persons,” not only to citizens. The Fourth Amendment, which is at issue in these administrative warrants that ICE is using, protects against unlawful search and seizure.
In a system of separated powers, you don’t want to have any one branch in charge of every element. The goal of the Constitution is to decentralize and create institutions that separate out power. I think one of the key issues with the administrative warrants is, in some ways, a Fourth Amendment problem, because the branch that is issuing the warrant is the executive branch, and traditionally a search warrant needs to be signed off by a judge. I believe this is the first time that an administrative warrant has been issued by an executive branch agency and used by an executive branch agency to arrest within someone’s own home. There have been instances where administrative warrants have been used for arrest outside of the home, but insofar as the Fourth Amendment protects the home, the administrative warrant does not appear to have ever been used in the way that it is currently being used.
Is the current use of administrative warrants in place of judicial warrants entirely unprecedented?
Dr. Engel: Yes. Not only is the use of administrative warrants unprecedented in this way, [but] the utilization of ICE in this context is [unprecedented]. ICE is a border patrol. It is not a paramilitary police force that has been trained to operate within urban areas. This kind of enforcement is completely different from traditional ICE enforcement.
I think what’s also different here is this kind of slipperiness that I’ve seen in the discourse about who is entitled to due process. I want to be really, really clear that the Constitution talks of “citizens” and it talks of “persons.” When it talks about due process guarantees and equal protection guarantees, it does not say citizens – it says persons. So anyone who is a person within the jurisdictional boundaries of the United States is afforded due process.
Having studied the field of constitutional law over the course of your career, what has struck you the most by this situation?
Dr. Engel: What I have found striking over the past year is how quickly our institutions have not been able to withstand what I would argue to be constitutionally questionable, if not wholly unconstitutional, actions being taken by the executive branch. I have been a little bit surprised by how fragile our institutions are; the quiescence, if not submissive, nature of Congress clearly not operating as a checking branch, for example. But I would also point to a lot of civil society organizations, universities, law firms. I don’t think I’m alone in being surprised by how many universities did not stand up to some of the egregious violations of academic freedom that the Trump administration had put forward, law firms as well.
What I’ve been really impressed by is how much popular backlash there has been. I live in Portland, and we’ve been seeing mass demonstrations almost weekly. People have come to support each other, providing financial resources, providing food, making sure children can go back and forth safely to their schools. I don’t think you have to be a constitutional scholar to feel like something seems off, right? That this isn’t who we are.
And I think I want to be very careful with that phrase, that this isn’t who we are. I would reframe that as this isn’t who, by our highest aspirations in our constitution, we have committed ourselves to be. It is who we have been historically when we look at things like the Fugitive Slave Act, when we had posses arresting individuals and carrying them back into enslavement. We have histories of police violence, targeted particularly against individuals who are Black and brown. We have the Chinese Exclusion Acts. All of this is very much part of our history. But I think people have a good understanding of what our constitutional principles and aspirations are and who we think we should be as a community. And I think people can say, even with all that history, and even if these kinds of actions are unsurprising given that history, that this isn’t who we think we should be.
Editor’s Note: This interview has been edited for length and clarity.
