Keeping ICE within the law

A defining feature of the American experiment is that citizens are not meant to live in fear of their own government. The Constitution was written against the backdrop of arbitrary arrests, general warrants, and the abuse of unchecked government power, with the express purpose of ensuring that government would secure the rights of the people rather than endanger them. As a result, Americans have not historically lived under the fear that they might be taken from their homes at the discretion of a vengeful, petty, or overly zealous political authority.

Yes, law enforcement has always existed, but its power has always been restrained. Indeed, the Fourth Amendment was adopted precisely to prohibit arrests and detentions based on mere suspicion or official convenience. In America, suspicion is insufficient; the government must provide evidence and submit itself to legal restraint before it may deprive someone of liberty.

But recent reports that Immigration Customs and Enforcement (ICE) officers are detaining U.S. citizens without probable cause raise questions about whether we are continuing to keep this promise. According to an internal memo recently made public by ICE whistleblowers, ICE has told its offices they can forcibly enter homes of people subject to deportation without a judicial warrant. The letter states that, in a departure from previous practice, an administrative warrant—which is easier to get—justifies entering a home to make an arrest.

It's easy to understand why ICE would prefer this outcome. Nearly 10 million people entered the country illegally during the Biden Administration, and responding to a situation of that scale naturally creates pressure for speed. Typical legal proceedings are slow—and slow sometimes means that law enforcement is stymied. Given the scope and nature of the problem, and the political alignment of those proposing the solution, the political right is sympathetic to the effort and the argument. But conservatives should be well-acquainted with the problems associated with expanding government power in the service of “extraordinary circumstances.”

In very recent history, well-meaning public officials severely restricted civil liberties to address the various COVID-related “emergencies.” In addition, we’ve spent a large part of the last two decades lamenting the leaders who gave lip service to free speech and religious freedom only to become enemies of the same when they were found to be “offensive” or “discriminatory.”

The very reason the Founders enumerated fundamental rights in the Constitution was because they understood the necessity of bright lines that cannot be crossed, regardless of the circumstance. Political leaders are adept at explaining why freedom must be limited in this case, and only this case—always with assurances that the restriction is narrow, temporary, and entirely for our own good. History suggests those assurances should be met with skepticism.

So, when the government looks for reasons to make it easier to break into someone’s house and make an arrest, we should think long and hard about what that could mean before we give the green light. We don’t have to be very creative to imagine how that could backfire on us. Our Founders understood that well, which is why they wrote the Fourth Amendment. To paraphrase G.K. Chesterton, don’t tear down a fence unless you understand why it was put up.

The rights our Founders committed to protecting were given to us by our Creator. We have them simply because we exist. America is so committed to the dignity of every person that we even give rights to people who break our laws to enter our country and break other laws once they are here. To be sure, we pay a price for that, but we get something for it as well. Treating people well even when they don’t deserve it assures us that we will be treated well when we do deserve it.

Yes, there is a legal difference between a citizen and a non-citizen. Yes, our past border policy has created a legitimate national security problem and cleaning it up should be a high priority. But don’t let the circumstances make you indifferent to the rights of the people involved. As in all cases, when we protect our neighbors’ rights we protect our rights, even if they shouldn’t be in our neighborhood.