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.
Aside from relying on an unsound constitutional justification, the use of administrative warrants to justify forcible entry runs counter to years of practice and precedent, as well as training designed to ensure constitutional compliance and protect the public from abuses of power. Indeed, the Homeland Security Act of 2002, which created the department in the wake of Sept. 11, expressly requires it to pursue its critically important missions while ensuring that “the civil rights and civil liberties of persons are not diminished by efforts, activities and programs aimed at securing the homeland.”
It is also wrong to state, as Mr. Percival did, that there is “broad judicial recognition” that the Fourth Amendment does not attach the same protections to all people in the United States. The Constitution does not reserve the right to be secure in one’s home only for American citizens. The amendment’s protections exist precisely because unchecked government power has always posed the greatest danger to individual liberty, particularly for those least able to protect themselves.
According to a complaint filed by a group representing whistle-blowers, the ICE memorandum containing this new interpretation of the law was not widely distributed. Apparently, employees were expected not to retain the memorandum but only to read it before returning it to their supervisors. This secrecy speaks volumes about the weakness of its arguments.
All of us made difficult decisions during our service at the Department of Homeland Security, but none of us needed to lean into conspiracy theories to justify them. We have not always agreed with one another, but we served with dedication and integrity and were honored to work for the American people. We provided our best counsel based on fidelity to the law. We urge the Department of Homeland Security to adhere to the Constitution and end the practice of conducting forcible entry into homes without judicial warrants.
Stevan Bunnell, Gus Coldebella, Ivan Fong, Kara Lynum, Jonathan Meyer and John Mitnick served as general counsels or acting general counsels for the Department of Homeland Security. They are writing in their personal capacities, not those of any organization with which they are affiliated.
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