Mike Johnson Is Very Annoyed By the Fourth Amendment’s Existence

On January 28, as a partial government shutdown loomed, Senate Democrats conditioned their support for funding the Department of Homeland Security on a short list of demands. In addition to a ban on masked agents and mandatory body cameras, Democrats pushed for an end to warrantless searches and arrests of immigrants, which ICE has been conducting in Minnesota and across the country for at least the last eight months. In a letter to their Republican counterparts, Senate Democratic Leader Chuck Schumer and House Democratic Leader Hakeem Jeffries called for reforms that would prevent DHS personnel from entering private property “without a judicial warrant.”

On February 2, responding to a reporter’s question about Fourth Amendment protections for people whom ICE apprehends, House Speaker Mike Johnson laughed heartily and said that Republicans would “never go along with” such a requirement.

Oddly enough, these comments suggest that neither party’s leaders seem to understand how immigration warrants work. Democrats are asking for something that the Constitution plainly requires already. Republicans, meanwhile, are pretending as if the Constitution’s plain requirements do not exist. 

The Fourth Amendment protects everyone inside the United States from unlawful seizures, whether or not they are a citizen. For at least six decades, courts have made it clear that arresting a person requires a law enforcement officer to have “probable cause”—essentially, a reliable basis for believing that a crime has been committed. 

Notably, simply being an undocumented immigrant is not a crime. Entering the United States illegally is a crime—a misdemeanor. But nearly half of undocumented immigrants in the United States entered legally and no longer have legal status, either because that status expired or because the government terminated it. In fact, since he took office last year, President Donald Trump has created at least 1.6 million “undocumented” immigrants by stripping legal status from large swaths of the noncitizen population.

Sometimes, though, seizing a person requires more than just probable cause—for example, if a law enforcement officer wants to enter your home to seize you. In that case, under the Fourth Amendment, that officer needs a judicial warrant—in the criminal context, an official document signed by a judge who has reviewed the evidence and agrees that there is probable cause to arrest you. The warrant requirement is part of the foundation of the Fourth Amendment, and ostensibly ensures that an “informed and deliberate” or a “neutral and detached” judge decides whether the officer has probable cause. This check on police authority prevents officers from just busting into homes and grabbing a person because they’ve decided, by themselves, they have enough. 

The challenge here is that ICE also uses something that it calls a “warrant.” But it is not a warrant that complies with the Fourth Amendment’s requirements. Instead, it is a form that ICE uses to assert that probable cause exists to arrest someone. It is not signed by any kind of “neutral decisionmaker,” but is instead signed by an ICE official. 

In recent months, ICE has not seemed especially concerned about getting either type of warrant. In January, agents broke down the door of ChongLy Scott Thao, a U.S. citizen and resident of St. Paul, Minnesota, and dragged him out of his home in his underwear. This was a blatant violation of the Fourth Amendment, but the reason for his warrantless seizure became clear shortly after his arrest: On January 21, a whistleblower released a secret ICE memo that authorized agents to arrest people in their homes without first obtaining judicial warrants. Ric Simmons, a law professor at Ohio State, told USA Today that the memo “goes against literally 250 years of case law on what the Fourth Amendment allows.”

What, then, are Democrats demanding in return for funding the Department of Homeland Security? Schumer has said that he wants ICE agents to have to obtain “arrest warrants.” But again, fully empowered warrants—those that explain probable cause with particularity, and are signed by a neutral decisionmaker—are already required by the Constitution. In other words, Democrats are using compliance with the Constitution as a bargaining chip in a fight over funding. But the Constitution already contains the requirement for a judicial warrant. 

In his press conference last week, Johnson attempted to defend ICE by further conflating the judicial warrants that ICE needs to obtain before entering someone’s home, and the administrative warrants it now asserts are sufficient.  Because an administrative warrant is “issued by an immigration judge,” Johnson said, it is a “sufficient legal authority to go and apprehend someone.” This is not true. Administrative immigration warrants are not signed by a judge; they are just signed by an ICE official.

Johnson went on to argue that as a practical matter, ICE agents sometimes must enter homes without a judicial warrant. “If someone is going to be apprehended and they run behind a closed door and lock the door, I mean, what is ICE supposed to do?” he asked. This is a curious question for a constitutional lawyer like Johnson to pose, because what agents in this situation have always been supposed to do is get a judicial warrant, just like any other police officer.

Johnson went on to claim that ICE “can’t” obtain a judicial warrant “on top of” an administrative warrant, because doing so would be too onerous. But the Constitution makes clear that rights are rights. The fact that complying with its terms is inconvenient for ICE agents does not mean that ICE agents (or any other law enforcement officials) get a free pass.