DHS’s Flawed Defense of Home Invasion Based on Administrative Warrants

Amid images of masked agents assaulting protesters in Minneapolis and forcing a half-naked U.S. citizen grandfather out of his home at gunpoint, news leaked of a policy that Immigration and Customs Enforcement (ICE) had secretly adopted months before. This new policy—implemented through an internal agency memorandum issued in May 2025—provided that immigration enforcement officers could forcibly enter people’s homes without a warrant issued by a judge or a neutral entity of any kind. That is, ICE disavowed its long-standing recognition that judicial warrants were required to invade a home; it authorized its agents to enter homes based on administrative “warrants” issued by enforcement officers alone. And ICE empowered its officers to break down people’s doors and enter their homes based only on administrative forms that—though labeled “warrant”—are issued by other ICE colleagues or the very ICE agents involved in the investigations or arrests. 

News of the policy triggered an immediate public outcry. One reason was almost certainly the nation’s experiences with federal immigration enforcement over the preceding year; news story after news story documented racial profiling, violent arrests, and unprovoked shootings by immigration enforcement agents operating in U.S. communities. So the idea of allowing ICE agents to decide—on their own and with no external check—to ram open people’s doors and enter their homes appeared to strike a public nerve. 

But the policy also provoked concern because it seemed to conflict with basic constitutional guarantees. As legal scholars pointed out almost immediately, this policy contravenes the well-recognized precept that the home lies at the heart of what constitutional privacy rights enshrined in the Fourth Amendment protect. It violates the rule that, absent a limited set of exceptions, judicial warrants are required before law enforcement officers may forcibly enter people’s homes. And this policy ignores the reason that warrants from a neutral and detached magistrate are required in the first place: Potentially overzealous law enforcement officers cannot be trusted to maintain the requisite neutrality to judge whether there is probable cause to justify such significant invasions. That’s why, as a district court in Texas explained recently, “[a]dministrative warrants issued by the executive branch to itself do not pass probable cause muster”; it’s akin to having a police officer issue a warrant to herself or her fellow officer, as Michael Kagan has aptly explained, or, in the works of the Texas court, “the fox guarding the henhouse.”

Since news of the policy leaked, the Department of Homeland Security has made a series of public statements attempting to defend the policy shift. The department recognizes that the Fourth Amendment generally “protects against unreasonable searches and seizures” and requires law enforcement officers to obtain a judicial warrant before entering someone’s home without permission. But, the department now argues, some (and potentially most) civil immigration arrests are exempt from this constitutional rule because an undefined group of noncitizens the department describes as “illegal aliens” are not “entitled to the same Fourth Amendment protections as U.S. citizens.” Accordingly, the department’s logic seems to go, these administrative-warrant-based home invasions need only be “reasonable,” a standard the department believes it meets, given the Supreme Court’s assertions in Abel v. United States (1960) of the “overwhelming” historical sanction for administrative “deportation arrests” authorized by executive officers alone. 

Moreover, though the Department of Homeland Security maintains that “administrative warrants may satisfy the Fourth Amendment for any arrest of an illegal alien” and ICE agents may have forced their way into a home without a judicial warrant to arrest someone who had not been ordered deported, ICE’s May 2025 policy allows forcible home entry only based on administrative warrants issued for the arrest of people who have been ordered deported by an immigration judge. Administrative-warrant-based home entries for this group, the department contends, are particularly constitutionally sound because these targets should be considered fugitives—analogous to people who have escaped from prison—and are entitled only to the limited Fourth Amendment protections that escapees from prison enjoy. 

As I describe more fully in a forthcoming paper, this argument fails at every step because it misunderstands or misrepresents the constitutional significance of these administrative warrants. Among other things, it ignores on-point case law that runs directly contrary to the department’s position. It fails to grapple with the realities of the modern immigration system. And, as Orin Kerr has pointed out, it relies too heavily on a plurality opinion from the U.S. Court of Appeals for the Eighth Circuit, United States v. Lucas, which has “limited legal significance.” This is true not only for the reasons that Kerr provides but also because of the consequential distinctions between the fugitive who had escaped from prison in that case and noncitizens who have remained—often with the agency’s permission—following an order of removal. But for present purposes—since ICE’s current policy and the Lucas plurality opinion rely in part on the Supreme Court’s decision in Abel—it’s worth a closer look at the Court’s decision and its relevance for evaluating administrative warrants today.

Abel arose out of a joint enforcement operation by the federal immigration enforcement agency—then the Immigration and Naturalization Service (INS)—and the FBI against Rudolf Ivanovich Abel, a noncitizen suspected of engaging in espionage. The FBI, while investigating Abel, alerted the INS that it believed he was unlawfully residing in the United States. After obtaining additional information, the INS concluded that there was reason to believe that Abel was removable for failing to update his address as required by federal immigration law. At that point, a high-level official at INS headquarters—the deputy assistant commissioner—determined that Abel should be arrested, and the New York office’s district director issued an administrative arrest warrant. Armed with that warrant, INS officers arrested Abel in his hotel room. In connection with the arrest, the INS searched his hotel room and luggage for, it claimed, additional evidence related to an alleged civil immigration violation. But it found evidence related to potential criminal espionage charges, which the agency shared with the FBI. And, when FBI agents searched the hotel room after Abel was essentially forced to check out, those agents found additional evidence to support espionage charges. 

In the criminal prosecution that followed, Abel sought to suppress the evidence obtained in searches related to the hotel arrest by arguing that (a) the immigration-related arrest was pretextual and mere cover to obtain evidence to support criminal espionage charges and (b) the execution of an administrative arrest warrant did not permit a search for evidence to be used in a criminal prosecution. The district court denied Abel’s motion, and the U.S. Court of Appeals for the Second Circuit and the Supreme Court affirmed. The Supreme Court rejected the notion that Abel’s arrest was pretextual, finding that the evidence did not compel the conclusion that the government had acted in bad faith. Given this and the fact that, in proceedings below, Abel had disclaimed any argument that the administrative arrest warrant was invalid because it did not satisfy the requirements for “warrants” under the Fourth Amendment, the Court declined to decide whether the administrative warrant satisfied the Fourth Amendment’s demands in that respect and went on to find the INS’s search incident to that arrest to be constitutionally permissible.

Although the Supreme Court explicitly declined to decide Abel’s belated challenge to the validity of the arrest warrant, it went on to muse in dicta that “deportation arrests” pursuant to administrative warrants issued by executive officers have the “sanction of time.” As the Department of Homeland Security now emphasizes in defending its new home arrest policy, the Court asserted that there was “overwhelming historical legislative recognition of the propriety of administrative arrest for deportable aliens,” and it seemed persuaded by the notion that these warrants were part of a long-sanctioned historical practice. But, even beyond the fact that these statements are dictum—language that is not necessary to a court’s decision and not binding in future cases—there are several reasons why they should carry little weight today. 

First, as others have noted, “there’s been a lot of water under the bridge” when it comes to Fourth Amendment law since 1960, when Abel was decided. As Meg Penrose describes, these developments include Supreme Court decisions recognizing the notion that a neutral and detached magistrate is required to issue a warrant within the meaning of the Fourth Amendment, and the fact that law enforcement is generally required to have a judicially issued warrant to constitutionally force their way into a home.

Second, Abel was wrong on its own terms. The Court’s assertion that arrests such as Abel’s were historically sanctioned relied on its view that there was “impressive historical evidence of acceptance of the validity of statutes providing for administrative deportation arrest from almost the beginning of the Nation.” But, as I have discussed in prior work originally published in the Stanford Law Review, the Supreme Court believed incorrectly that these warrants were historically sanctioned because it “missed and misunderstood important aspects of the relevant history.” 

For one thing, Abel’s characterization of the relevant legislation at “almost the beginning of the Nation” is flawed and incomplete. The Court’s description vastly overstates the significance of the only law that Abel cited from the nation’s founding era: the highly controversial, constitutionally suspect, and never-used “Alien Friends Act” of 1798. And Abel overlooked or ignored the expulsion laws that were widely used and deeply rooted in the founding era: the early state laws that provided for expulsion, including beyond sovereign borders. Those state laws, which authorized expulsion-related arrests pursuant to warrants issued by magistrates or tribunals with judicial power, reflect a very different view of the type of warrants that the nation’s early history sanctioned. Thus, Abel missed important evidence indicating that arrests for purposes of civil removal proceedings—including of foreigners and for removal beyond sovereign borders—were understood to require warrants issued by entities with judicial power rather than by agents purely charged with enforcement. 

Abel’s assertion of historical sanction for deportation arrests like Abel’s was also flawed when it came to later periods and subsequent immigration laws. As I have argued previously in the Michigan Law Review, Abel misunderstood this history because it treated “a wide range of distinct types of executive probable cause determinations as equivalents regardless of the role or position of the officer signing off on the arrest.” That is, Abel failed to recognize—much less grapple with—the consequential distinctions in the positions of the executive officers serving as the warrant-issuer in statutes throughout history and the warrant issuer in Abel’s case. And those distinctions were critical in the early federal scheme.

For decades—including in much of the history on which Abel relied—the administrative power to authorize arrests was treated as quasi-judicial and vested in a Cabinet-level secretary alone. This was important because, as high-level officers recognized in the early years of this arrest system, the power to authorize arrests was “an extraordinary one” to place in the hands of an administrative officer, required “great care and deliberation,” and carried a grave risk of abuse. Indeed, in the early administrative deportation arrest system, one administrator noted that, while this “extensive power ha[d] seldom if ever been seriously abused,” it raised concern because it gave free rein to “an executive hand capable of grossly abusing lawful authority.” Of course, as demands upon the secretary grew and the concept of administrative subdelegation gained acceptance, this model of warrant-issuing began to change. 

As S. Deborah Kang has described in critical work in documenting the agency’s internal debates about arrest procedure from the 1920s through the 1940s, the INS did ultimately begin decentralizing and subdelegating warrant-issuing authority to some degree. But, as she describes, this power was subdelegated to a small cadre of high-level officers—certain high-level executive officers at the agency’s headquarters and a discrete group of geographically dispersed INS officers in charge of the districts (and, at times, certain suboffices) in which the INS had divided the nation. And this limited set of geographically dispersed officers “both supervised immigration enforcement and played a major (even decisive) role in adjudicating deportation proceedings,” meaning that, like the secretary, they played a dual enforcement and quasi-judicial role. 

It was only in 1956—amid efforts to separate administrative powers in the removal system—that warrant-issuing authority was moved to the enforcement side of this emerging divide. That’s because, following a challenge to the deportation scheme that continued to commingle adjudication and enforcement authority in district directors, the agency promulgated a regulation that removed the supervision of adjudication officers and hearings from the purview of district directors, making them “solely charged with enforcement.” So, when Abel was arrested in 1957 and the Court ruminated on the propriety of his administrative arrest warrant in 1960, the structure that treated arrest warrant-issuing authority as a purely enforcement-officer function was still new; it was not at all clear that history supported or Congress viewed the power to issue arrest warrants as appropriately placed in enforcement versus quasi-judicial hands. 

Third, even if Abel had been correct when it was decided, we’re now in a vastly different world in terms of immigration agency-issued arrest warrants. At that point, the immigration legal system permitted enforcement-focused executive officers to issue administrative arrest warrants, but that warrant-issuing power was still limited because it was vested in only a small subset of high-level INS officers: the officers in charge of the approximately 33 INS districts nationwide. The nature and shallowness of this subdelegation mattered because it operated as a limit on the scope of this practice given the relatively small number of warrant-issuers. It also functioned as a structural constraint. After all, the low-level enforcement agents seeking warrants and executing arrests played different roles and were, in some respects, distinct from what Abel saw as the “independent responsible” officers in charge of INS districts. 

Today, in contrast, the power to issue administrative arrest warrants is treated as “legally trivial and diffuse” in the immigration scheme. By regulation, the Department of Homeland Security has subdelegated this once-limited warrant-issuing power to a vast number of immigration enforcement agents, including ones who are intimately involved in investigating cases and executing these warrants. And the current scheme makes it impossible for any of us to actually know who else exercises this power, as the department has also adopted regulations permitting the secretary of homeland security to further grant authority to issue warrants to virtually any federal employee and in any manner he chooses.

Unsurprisingly, the abuses that early administrators feared now abound in immigration’s warrant-issuing scheme. In recent years, supervisors have doled out blank, presigned arrest warrant forms, agents have relied on warrants with blatant factual flaws, and ICE regularly attempts to rely on warrants that postdate the arrest for which they are required. Warrant-issuers even at the highest echelons of the department now look very different from the high-level “independent responsible” officer that Abel envisioned, as they have proudly demonstrated their failure to understand the basic constitutional requirements for these civil immigration arrests and the significant extent to which the president’s political agenda has dictated their arrest-related decisions. In short, the scale of warrant-issuing, the role of warrant-issuers, and the approach to warrant-issuing today make for a radically different context than the one in which Abel was decided.

Absent some external shift, the risks that flow from this enforcement officer-controlled warrant scheme will likely grow. Immigration enforcement agents now face intense pressure to make immigration arrests. ICE has recently hired thousands more immigration agents, who will likely wield the power to execute and perhaps issue these warrants. And, even though, as one court noted, the government has treated requirements for immigration warrants with “indifference bordering on disdain,” the agency reduced or eliminated important aspects of its training on lawful arrests for many of these new hires.

For all of these reasons, courts have become increasingly skeptical of the validity of these warrants and the assertions therein. Policymakers too should recognize that, given the far-reaching changes in the immigration system since its administrative arrest warrant scheme was adopted and the perils that the current system creates for all Americans, it is time to require that a neutral magistrate stand between immigration agents and the arrests they seek to make, particularly when it implicates the home and other private domains.