The Trump administration’s draconian immigration enforcement actions are raising the specter of American autocracy, prompting many to ask — perhaps for the first time — how the U.S. could possibly have gotten here. Videos of masked ICE agents in street clothes accosting unsuspecting people in public places, or smashing car windows and dragging people into unmarked vehicles, are all over the internet and social media.
The behavior of ICE agents is also revealing glaring blind spots in the law, which has long been premised on the assumption that government officials mostly act in good faith, prompting the widespread question: Can they legally do that?
Rather astonishingly, the answer is — for the most part — yes, they can.
ICE’s heavy-handed tactics are even being used against people once presumed to be immune from raw police brutality: elected officials. On June 18, New York City Comptroller and Democratic mayoral candidate Brad Lerner was arrested in a hallway outside federal immigration court, his demands to see a judicial warrant ignored. On June 12, Sen. Alex Padilla (D-Calif.) was forcibly thrown to the floor, handcuffed and removed during a press conference by Homeland Security Secretary Kristi Noem while clearly identifying himself and shouting, “I have questions for the secretary!”
In May, masked agents arrested Ras Baraka, the mayor of Newark, New Jersey. In April, Milwaukee Judge Hannah Dugan was arrested by the FBI and later indicted on federal charges of obstruction and “concealing an individual to prevent his discovery and arrest” in connection with an ICE enforcement action involving her courtroom.
While ICE agents are refusing to identify themselves, produce warrants or show their faces while snatching people off the street, President Trump declared on Truth Social that “from now on MASKS WILL NOT BE ALLOWED at protests,” directing law enforcement to “ARREST THE PEOPLE IN FACE MASKS, NOW!”
One set of rules for law enforcement, another one for regular people. Where, oh where are the First Amendment’s guarantees of free speech, which includes the freedom to remain anonymous? What about the Fourth Amendment’s requirement for warrants and its ban on unreasonable searches and seizures, including the seizure of one’s “person” by virtue of a detention or arrest?
Without the display of badges, the production of signed warrants or the ability to recognize a face, it seems impossible to know whether some of these purported ICE agents are in fact federal officials rather than vigilantes — gun-toting private individuals who believe they are acting in the interests of the president. After all, some of the thousands who showed up at the U.S. Capitol on Jan. 6, 2021 — which include the 1,500 Trump later pardoned for their crimes — later said they had done so at Trump’s behest. There are criminal laws against kidnapping, after all, and against impersonating a federal officer. Isn’t someone checking to make sure those aren’t being violated?
There are constitutional limits on all government officials — even the president. But as a matter of legislative policy and Supreme Court precedent, most legal limits on government activity are balanced against the need for law enforcement to act swiftly, safely and effectively. These sorts of balancing determinations were made when it was generally assumed that the government acts in good faith, which is why ICE has more powers than many people think they should. Things are different now.
While ICE has claimed that its personnel must wear masks due to an alleged 413 percent increase in assaults on agents, there exists no constitutional obligation for law enforcement to identify themselves. Some states and municipalities have laws on the books requiring police to identify themselves in certain circumstances. But undercover policing is hardly new. In 2021, Congress passed a law requiring federal military and law enforcement to identify themselves, but only in response to a “civil disturbance.”
Moreover, even if a law enforcement officer does cross a constitutional line and winds up facing a lawsuit, the Supreme Court has erected a powerful defense of “qualified immunity” that lets officers off the hook if a court determines that they acted reasonably. Although courts have held that police must identify themselves if individuals would otherwise believe that they were being assaulted by a civilian, those cases are spotty. The Trump administration is obviously not dissuaded by the threat that one day, down the line, ICE officers will be successfully sued for monetary damages, or that an injunction based on the ICE detentions occurring today will be issued.
As for a judicial warrant signed by a judge as a precondition to ICE detention, Congress gave immigration agents the legal power to issue administrative warrants, so no judge is required, unless ICE wants to enter someone’s residence or private property. ICE agents can even arrest people without a warrant if they have “reason to believe” that a person is not legally authorized to be in the U.S. and “is likely to escape before a warrant can be obtained for his arrest.”
If an ICE agent is willing to skirt these requirements, accountability can only occur after the fact — and that’s assuming the migrant has a lawyer and gets before a judge in time to avoid removal. Many of the ICE detentions happening now are thrusting migrants into “expedited removal procedures” that, by law, allow the government to entirely bypass a judge under certain circumstances.
As for the officials being manhandled and arrested, ICE has no stand-alone authority to enforce federal criminal laws against U.S. citizens. But Congress has empowered immigration officials to arrest people “for any offense against the United States, if the offense is committed in the officer’s or employee’s presence.” All of these public servants were alleged to have been obstructing or assaulting ICE officials carrying out official duties. In May, House Republicans voted down a Democratic effort to clarify that ICE agents cannot detain or deport U.S. citizens.
The American version of the “little green men” that Russia sent into Crimea in 2014 are upon us, and the law is ill-equipped to deal with it. Congress must act.
Kimberly Wehle is author of the book “Pardon Power: How the Pardon System Works — and Why.”