Whistleblowers from the Trump administration have brought to light a confidential memo from DHS and ICE, indicating that these agencies believe immigration officers can enter homes without a judge-signed warrant. This has led a prominent constitutional law expert specializing in the Fourth Amendment to tentatively determine that the government’s stance might be legally flawed.

Despite the well-documented history of warrantless surveillance on U.S. citizens, accusations against the Trump administration suggest it may have escalated these practices. Reports allege that officials have been “forcibly” entering American homes without judicial warrants or consent to facilitate mass deportations of undocumented immigrants, under the guise of “restoring safety.”

On Wednesday, the legal nonprofit Whistleblower Aid revealed that two anonymous government officials claim there has been a “blatant breach of the Fourth Amendment.” This assertion comes at a critical time, aligning with reports of ICE agents unlawfully entering homes, including those of American citizens, without judicial consent and forcibly removing residents, all under Secretary Kristi Noem’s oversight.

DHS Assistant Secretary for Public Affairs Tricia McLaughlin addressed these allegations by stating there was nothing novel about the situation, as ICE agents possess “administrative warrants.” These warrants, sanctioned by the Trump administration, authorize the deportation of individuals with a “final order of removal” issued by a federal immigration judge. However, this judge operates within the executive branch and is appointed by U.S. Attorney General Pam Bondi, rather than being an Article III federal judge.

McLaughlin emphasized that “administrative warrants have been employed for decades and acknowledged by the Supreme Court and lower courts.” Responding to the Associated Press’s coverage, she asserted that whenever DHS uses an administrative warrant for entry, the individual in question has already undergone due process and received a final deportation order from a federal immigration judge, with officers also possessing probable cause.

In short, DHS acknowledged that the government has been using I-205 warrants it created to enter homes, but claimed that has in “every case” targeted an “illegal alien” with a “final order of removal” from the country. As Law&Crime has previously reported, it has not always been clear that the “final order of removal” the administration claims to have actually exists.

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.