Noah Feldman: Why isn't anyone stopping ICE?

“Why is no one doing anything about ICE?” is the question I'm most frequently asked when people find out I’m a constitutional law professor.

They’re not wrong to ask. In the 10 months of President Donald Trump’s administration running roughshod over the Constitution and federal law, nothing has been more upsetting to our collective understanding of how America works than masked Immigration and Customs Enforcement officers roaming the streets and grabbing people on suspicion that they are undocumented. Operating without warrants or identification and prepared to arrest bystanders whom they deem to be interfering, ICE personnel have brought into reality a scenario that until now would have been dismissed as fantasy — or at least as something that could never happen here.

Standard ICE procedures aren’t just frightening people of Latino origin or people who look as if they might be Latino. They are terrifying many of us, including women in particular, who wonder what they are supposed to do if armed men in an SUV were to abduct them at gunpoint in broad daylight. Even the FBI has recognized the potential for problems, issuing an alert to state and federal law enforcement agencies that warned criminals impersonating ICE agents had committed kidnappings and sexual assaults, according to Wired. The memo urged agents to identify themselves clearly, the publication reported.

The ICE question can be answered in three different ways. Each one highlights the failings of a different part of our system of constitutional government.

First, lawyers have been trying to fight back against ICE tactics. But they have run into the Supreme Court’s shameful willingness to allow the racialized targeting of potentially undocumented people. A September decision by the conservative majority of the court, reached in the court’s so-called interim docket (also known as its emergency or shadow docket), allowed ICE to “briefly detain” people for questioning about their immigration status on “reasonable suspicion.” Justice Brett Kavanaugh, the only member of the majority to bother explaining the court’s reasoning, wrote that “apparent ethnicity” could count as a “relevant factor” when considered alongside factors such as speaking Spanish and gathering in certain locations to find work in specific jobs. The dissent by Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, correctly and passionately condemned the decision. For now, however, it is the law.

Second, the executive branch under Trump has exploited loopholes in statutes and regulations governing ICE to expand the agency’s power in ways clearly not anticipated by Congress or the regulations' authors. The statutes that authorize ICE’s functions ordinarily require an administrative warrant before the detention of a noncitizen. To get around this, the Trump administration has relied on a provision that allows warrantless detention if the officer has “reason to believe” that the person is undocumented and is likely to escape before a warrant can be obtained. The “reason to believe” standard has been interpreted by the lower courts to require probable cause, the same standard ordinarily required for a criminal arrest. The Trump administration appears to be relying on the idea that if someone is “briefly detained” for questioning and can’t prove they are lawfully present in the US, there is probable cause to detain them.

Another example of a loophole that’s enabled ICE is that the same statute allows its officers to arrest anyone “for any offense against the United States, if the offense is committed in the officer’s … presence,” so long as the officer is enforcing immigration laws at the time of the arrest and “there is a likelihood of the person escaping before a warrant can be obtained for his arrest.” This is the basis on which ICE claims the authority to arrest bystanders who, it claims, are interfering with its operations, since it’s a crime to interfere with officials in the performance of their duties. Most — perhaps almost all — of such arrests are not followed by criminal prosecution, but the fear of arrest is there all the same.

The most shocking loopholes come from the apparent reality that no law or regulation requires ICE agents to show their faces or to provide identification when making stops and arrests. All they have to do is say that they are government officers. This creates the harrowing situation in which anyone could be taken by anyone claiming to be an ICE officer at any time, without knowing if it is a real detention or an illegal abduction.

Third, because this situation is morally intolerable, it’s worth noting that blame doesn’t stop with the Supreme Court or the president. Congress has the power to stop ICE from doing what it’s doing. But that would take new legislation, which the Republican Congress shows no signs of drafting, much less passing — and which Trump would likely veto.

Creative lawyers fighting for our rights still have techniques they can and probably will try. For example, it’s conceivable that the whole ICE policy could be challenged as a violation of the Administrative Procedure Act and blocked by a judge. This legal tool was used successfully by the Harvard chapter of the American Association of University Professors to convince a federal judge to block the Trump administration’s policy of deporting lawful visa holders for exercising their First Amendment rights. (The opinion in that case, by Judge William G. Young, a Reagan appointee, deserves a column of its own.)

And perhaps the Supreme Court will come to its senses about racially targeted immigration stops, realizing that its interim order could easily become a byword for judicial failure to recognize constitutional equality, alongside the infamous Korematsu decision that permitted the internment of Japanese Americans during World War II.

In the meantime, however, the ICE problem forces us to acknowledge the limits of our legal and political systems. Our norms and expectations are being shattered by an overreaching executive. So far, the judiciary isn’t coming to the rescue, and the legislative branch seems not to care. All of these problems ultimately can be traced back to us. We elected Trump (twice); we have a Supreme Court where his nominees hold the balance of power; and Congress is made up of the people we put there. We the people have to make ICE reform into a priority in the 2026 and 2028 elections — or nothing will change anytime soon.

____

This column reflects the personal views of the author and does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People."