Welcome News from Markwayne Mullin’s Confirmation Hearing But Questions Remain
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The March 18th confirmation hearing of Markwayne Mullin, President Trump’s nominee for Secretary of Homeland Security, brought what seemed to be good news for immigrants and for Americans concerned about the civil liberties implications of ICE’s aggressive deportation campaign with the arbitrary goal of deporting one million immigrants each year.
Mullin Commits to Requiring Judicial Warrants for Arrests at Private Homes and Businesses
In response to questioning by Senator Richard Blumenthal, the ranking Democratic member of the Permanent Subcommittee on Investigations, Mullin committed to requiring ICE agents to secure judicial warrants before entering people’s homes or businesses — as required by the Fourth Amendment to the U.S. Constitution. He went on to assure the Committee that he would afford businesses that same protection.
It is a welcome commitment. Though it is also a sign of the times that a promise to have federal law enforcement respect the constitution would qualify as newsworthy in a democratic country.
At the same time, it is not yet clear exactly what Mullin’s promise is worth and the integrity with which it will be upheld.
What the Fourth Amendment Actually Says
The text of the Fourth Amendment is unambiguous:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
That language should provide strong protection. Yet it was only six weeks ago that DHS “clarified” its view of the law in a press release: “DHS Sets the Record Straight on Administrative Warrants and American Public Support of President Trump’s Deportations of Illegal Aliens” stating:
This is consistent with broad judicial recognition that illegal aliens aren’t entitled to the same Fourth Amendment protections as U.S. citizens.
Let’s be clear, the term “broad judicial recognition” does not mean constitutional law.
Will newly-installed Secretary Mullin — whose nomination was approved in a narrow 8-7 vote, without support from its Chair Rand Paul, who voted against, after confronting Mullin during the hearing for reportedly calling him a “freaking snake” — be willing or able to keep his promise to limit warrantless searches?
The Troubling Fine Print
Mullins’s nod toward respect for the Fourth Amendment, while significant, can surely be read to signal changes in the administration’s immigration enforcement tactics. At the same time, the shift must be understood as being primarily an effort to counter extreme public disapproval of current ICE tactics (where two-thirds of the public say that ICE has gone too far) and to facilitate negotiations on ICE’s budget.
It is worthwhile to note that Mullin’s commitment came with a carve-out that legal experts say deserves scrutiny. Mullin stated that judicial warrants would not be required when ICE agents were actively “pursuing” someone.
Constitutional scholar Steve Vladeck has debunked the legal theories the administration has leaned on: that all immigrants without permanent legal status are “fugitives from justice” and therefore fair game for warrantless ICE arrests.
It would be outrageous to use the “fugitive from justice” argument as a pretext for a warrantless arrest, far beyond what the Fourth Amendment permits. This is, of course, similar to the argument that immigrants who have lived in the U.S. for 20-30 years are still “recent arrivals.”
Ironically, one pathway forward may well be to look back at the “plain language” of the Fourth Amendment and what it implies in contemporary society. The amendment begins by stressing that the right of the people is “to be secure in their persons, houses, papers, and effects, against unreasonable searches.”
While case law and legal precedents have watered down that original full-spectrum affirmation of individuals’ right to privacy, it is a powerful reminder of the need for law enforcement (especially federal agencies) to be held accountable to pursuing their stated mission without routine efforts to circumvent the judicial system.
Who Really Calls The Shots at DHS?
It is not clear what Mullin’s commitment to adhere to the law actually means. As part of negotiations on the contentious issue of the ICE budget, a letter from “Border Czar” Tom Homan to Senate negotiators on March 17th, the day before the nomination hearing read:
The Administration will limit civil immigration enforcement activities at certain sensitive
locations, subject to a narrow carve-out for immediate needs like national security, flight
risks, and public safety. Sensitive locations include places like hospitals and schools, which is current practice.
This is actually not current practice under the Trump Administration.
On the day of President Trump’s inauguration, the administration’s first DHS memo proclaimed, “Criminals will no longer be able to hide in America’s schools and churches to avoid arrest.”
The value of Homan’s offer to restore protection of sensitive locations (at least churches) is also not evidence of a durable change in aggressive ICE enforcement since it stemmed from a federal court injunction issued on February 13th in a case brought by a coalition of churches. In one instance, after a pastor told masked agents that they could not arrest a man in their parking lot since they were on church property, one of them reportedly responded, “The whole country is our property.” After another pastor shouted instructions to the man being arrested, an agent pointed his rifle at her.
Looking Beyond Warrantless Arrests
Assuming that Secretary Mullin honors his commitment to requiring judicial warrants for ICE arrests at people’s homes or business establishments, it is not clear the impact on immigrant well-being in many communities.
To be sure, the cases of warrantless home arrests are shocking: a family of six Venezuelan immigrants arrested at gunpoint, including a 12 year-old boy, detaining a Burmese nursing mother who was lawfully present, battering down a Liberian family’s front door, arresting a Somali-American citizen in the stairwell to the restaurant he worked in, and, of course, the national front-page news of detaining Liam Conejo at the front door of his family’s home.
There is no definitive data on the number of warrantless home arrests, however, and experts believe they make up a relatively small proportion of all warrantless arrests.
What will likely go on unabated:
Kavanaugh Stops: The warrantless arrests of Latinos based on where they work and how well they speak English via what are now known as “Kavanaugh stops” due to the Supreme Court approving these stops in its shadow docket decision that expanded the criteria for “reasonable suspicion.”
Geofencing Surveillance: The use of geofencing surveillance software such as the ELITE suite to identify “target rich” neighborhoods and conduct mass detentions at traffic checkpoints or through building sweeps. Entire neighborhoods will be “collateral damage” as seen in ICE’s raid on a Chicago building in pursuit of Tren de Aragua members and community sweeps in Bakersfield and Woodburn, Oregon.
Access to administrative datasets: Unauthorized access to administrative datasets based on the pretext that DHS is investigating “fraud” (the justification for securing MedicAid, SNAP, and HUD data) or reportedly securing IRS tax returns of ITIN filers by alleging they are under investigation. A warrant requirement for home arrests does little to curtail this surveillance infrastructure.
Fuzzy legal theories to justify Fourth amendment exceptions. For example, are pre-school programs such as Headstart “schools” qualifying as “sensitive locations?” Are small unincorporated Latino evangelical congregations considered to be churches?
Active litigation by the Trump administration against innovative local government efforts to establish “ICE-free zones.”
Will things really get better? We can only hope so, but even if Secretary Mullin is genuinely committed to following the law, it is not clear he will be given permission to do so.
Mullin also was clear about the current political reality. After denying that he had been given a quota of 3,000 immigrant arrests per day by the White House, he concluded, “The President sets the policies. I will be working with the President.”
Will nominal policy actually be implemented, given that nominal policy and actual practice have diverged repeatedly in this administration. Survival for officials in the Trump administration has frequently required accommodating sudden reversals of policy. Whether Mullin will be willing — or permitted — to hold the line on his commitment remains to be seen.
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