In a startling revelation, whistleblowers within the Trump administration have brought to light a confidential memo from the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE). This document allegedly outlines the agencies’ stance that immigration officers may enter homes without a judge’s warrant to arrest individuals facing final deportation orders. This has prompted a leading expert on the Fourth Amendment to suggest that the government’s interpretation is likely incorrect.

While the history of warrantless surveillance on American citizens is well-documented, allegations against the Trump administration suggest unprecedented actions. They reportedly include forcibly entering homes without judicial approval or resident consent, under the guise of mass deportation for “restoring safety.” This aggressive enforcement has raised significant concerns about potential constitutional violations.

On Wednesday, the nonprofit legal organization, Whistleblower Aid, highlighted claims from two anonymous government officials. They describe these actions as a blatant breach of the Fourth Amendment, noting recent incidents where ICE officers entered homes, including those of U.S. citizens, without judicial warrants. These actions reportedly occurred under the oversight of Secretary Kristi Noem.

In response to these allegations, DHS Assistant Secretary for Public Affairs, Tricia McLaughlin, dismissed the uproar as unfounded. She explained that ICE agents possess “administrative warrants” authorized by the Trump administration, which are used to deport individuals who have received a “final order of removal” from a federal immigration judge. However, the judges in question are part of the executive branch and are appointed by the U.S. Attorney General, rather than Article III federal judges.

McLaughlin asserted in a statement to the Associated Press that “administrative warrants have been used for decades and recognized by the Supreme Court and lower courts.” She emphasized that when DHS uses an administrative warrant to enter a residence, the individual in question has already undergone due process and received a final removal order. Moreover, she claimed that officers always have probable cause to act.

In essence, DHS has confirmed that it employs I-205 warrants created for entering homes, targeting individuals with final deportation orders. However, as noted in previous reports by Law&Crime, it remains unclear whether the “final order of removal” cited by the administration consistently exists in all cases.

The whistleblowers and their lawyers submitted a complaint to Congress on Jan. 7, stating that DHS and Acting ICE Director Todd Lyons’ “secretive memo” from May, a “policy” change largely expressed verbally to agents and kept confidential under pain of potential firing, does in fact break new ground that contradicts “written course material instructing the opposite.”

“Although the U.S. Department of Homeland Security (DHS) has not historically relied on administrative warrants alone to arrest aliens subject to final orders of removal in their place of residence,” the memo said, the DHS Office of General Counsel “recently determined that the U.S. Constitution, the immigration and Nationality Act, and the immigration regulations do not prohibit relying on administrative warrants for this purpose.”

“Accordingly, in light of this legal determination, ICE immigration officers may arrest and detain aliens subject to a final order of removal issued by an immigration judge, the Board of Immigration Appeals (BIA), or a U.S. district court judge or magistrate judge in their place of residence,” the memo continued.

While the complaint did not reveal the identities of the whistleblowers to Congress, it did indicate they were among “some employees” that a “select” DHS supervisor showed a copy of the memo.

“While addressed to ‘All ICE Personnel,’ in practice the May 12 Memo has not been formally distributed to all personnel,” the complaint said. “Instead, the May 12 Memo has been provided to select DHS officials who are then directed to verbally brief the new policy for action. Those supervisors then show the Memo to some employees, like our clients, and direct them to read the Memo and return it to the supervisor.”

The complaint warned that, as a result of this policy, “[p]otentially, scores of ICE Agents will be emboldened to unlawfully enter private residences, which include the private residences of U.S. citizens.”

In remarks on the substance of the complaint’s allegations, Whistleblower Aid Senior Vice President and Special Counsel David Kligerman said the Trump administration greenlit and hid a policy justifying actions that the Fourth Amendment was “created to prevent.”

“If ICE believes that this policy is consistent with the law, why not publicize it? Perhaps they’ve hidden it precisely because it cannot withstand legal scrutiny,” Kligerman surmised.

A separate analysis by Stanford Law School professor and Fourth Amendment scholar Orin Kerr, without the benefit of being able to read DHS’ legal reasoning, walked through the likely relevant case law.

Kerr said the legal history and “traditional thinking” shows that the “standard view has been that administrative warrants can’t authorize home entry because they’re executive branch orders, and the executive branch can’t be in charge of deciding whether to give itself a warrant,” as that is the job of a “judicial officer.”

Kerr tentatively concluded that the policy is “likely wrong” on the Fourth Amendment but “not frivolous,” as the administration could be arguing an “immigration judge” is a “judicial officer.”

The law professor pointed out that, in the case of a Canadian man illegally in the U.S. but who was not arrested inside his residence, the 5th U.S. Circuit Court of Appeals in 2022 declined to answer “whether an administrative warrant may be used to arrest an alien in his home,” leaving that “important question for another day.”

But will that day come? Kerr was not so sure, writing that in the event the seemingly “unconstitutional” DHS policy results in illegal government searches of homes, aggrieved individuals “probably can’t sue ICE” for damages that stem from violations of their Fourth Amendment rights.