In an outrageous expansion of its authority, US Immigration and Customs Enforcement (ICE) is now authorizing its agents to arrest anyone they suspect of being undocumented, even if the officers do not have a warrant and the person is not a flight risk.
The directive, contained in a memo obtained by the New York Times, reverses long-standing ICE policy and effectively renders the warrant requirement itself empty.
Coming on the heels of another legally indefensible memo, which purported to allow ICE agents to enter the homes of suspected undocumented people without a judicial warrant, the new policy shows that ICE is not just exploiting legal loopholes to create massive sweeps. Instead, it reveals an agency actively attempting to change the legal landscape to turn itself into an all-powerful police force.
Federal law permits ICE to make warrantless arrests under only two circumstances. The first is when an agent sees someone actively crossing the border illegally. That scenario is not relevant to the current ICE sweeps, which take place in cities far from the border.
The second situation in which the law allows a warrantless arrest, the one addressed by the new memo, is if an ICE officer “has reason to believe” that someone is in the US without legal authority and “is likely to escape before a warrant can be obtained for his arrest.”
As even ICE has been forced to acknowledge, the phrase “reason to believe” in the statute means that the agent must have probable cause to think that the person is undocumented. That standard, borrowed from the context of criminal arrest, appears protective of individual rights.
However, in a decision in its emergency docket in September last year, the US Supreme Court disastrously eroded this protection by allowing street stops based merely on “reasonable suspicion” — a standard lower than probable cause. A solo opinion by US Supreme Court Justice Brett Kavanaugh then extended reasonable suspicion to include factors like appearing Latino and speaking Spanish.
That brings us to the new memo, which addresses whether ICE agents can then arrest the person who has been stopped. Until now, it has been the long-standing practice of ICE to permit warrantless arrests only when the officers determined that the person stopped was a flight risk, meaning that they would be unlikely to show up for a court hearing.
Until now, ICE has acknowledged that this rule was required by the statute’s demand that someone be “likely to escape” before they can be arrested without a warrant. In practice, that made it relatively unusual for ICE agents to carry out a warrantless arrest.
The new memo fundamentally transforms the meaning of the words “likely to escape.” It claims that a person who has been stopped is likely to escape if they are “unlikely to be located at the scene of the encounter” by the time an arrest warrant could be obtained. Since just about anyone would walk away from an ICE arrest if they could (at least under current circumstances), it follows from this interpretation that anyone stopped by ICE is “likely to escape” — and thus may be subjected to warrantless arrest.
The memo says that ICE’s previous position about the meaning of the statute was “unreasoned” and “incorrect,” but it is the new interpretation that is unreasoned and incorrect. Based on ICE’s interpretation, there would be no reason to ever require the issuance of a warrant, given that ICE agents can, under the new theory, effectively arrest anyone who would not stick around once stopped. Put another way, ICE’s new interpretation turns the statute into a dead letter.
I realize all these legal technical details are a lot. So let me put it simply: Under the new memo, ICE agents can detain anyone they think might be undocumented, based on factors such as ethnic appearance, language and where you happen to be when they stop you. Once they have stopped you, they can claim to have probable cause that you are undocumented (for example, because you do not have proof of citizenship on you). Then the officers can simply arrest you, without a warrant. The total package amounts to a sweeping authorization for ICE agents to roam the streets, grab just about anyone they want, arrest and detain them.
Such proceedings are plainly unlawful under the legal regime that is supposed to apply. The warrant requirement for an ICE arrest, established by statute, is meant to function as a protection against exactly the kind of massive, non-specific sweeps ICE is now performing. Similarly, the requirement of a judicial warrant before entering a home is a foundational safeguard of individual liberty.
The good news about ICE’s attempts to get around the law is that they would come before the courts. The courts should affirm that the statute means what it says: “Likely to escape” means that ICE cannot arrest a person without a warrant unless they are a flight risk. Judicial interpretation of federal law is a cornerstone of preserving the rule of law itself. ICE’s actions are terrifying, and meant to be, but the law remains one of the tools that can be used to resist a descent into a police state.
Noah Feldman is a Bloomberg Opinion columnist and a professor of law at Harvard University. 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.
The Chinese Communist Party (CCP) has long been expansionist and contemptuous of international law. Under Chinese President Xi Jinping (習近平), the CCP regime has become more despotic, coercive and punitive. As part of its strategy to annex Taiwan, Beijing has sought to erase the island democracy’s international identity by bribing countries to sever diplomatic ties with Taipei. One by one, China has peeled away Taiwan’s remaining diplomatic partners, leaving just 12 countries (mostly small developing states) and the Vatican recognizing Taiwan as a sovereign nation. Taiwan’s formal international space has shrunk dramatically. Yet even as Beijing has scored diplomatic successes, its overreach
In her article in Foreign Affairs, “A Perfect Storm for Taiwan in 2026?,” Yun Sun (孫韻), director of the China program at the Stimson Center in Washington, said that the US has grown indifferent to Taiwan, contending that, since it has long been the fear of US intervention — and the Chinese People’s Liberation Army’s (PLA) inability to prevail against US forces — that has deterred China from using force against Taiwan, this perceived indifference from the US could lead China to conclude that a window of opportunity for a Taiwan invasion has opened this year. Most notably, she observes that
For Taiwan, the ongoing US and Israeli strikes on Iranian targets are a warning signal: When a major power stretches the boundaries of self-defense, smaller states feel the tremors first. Taiwan’s security rests on two pillars: US deterrence and the credibility of international law. The first deters coercion from China. The second legitimizes Taiwan’s place in the international community. One is material. The other is moral. Both are indispensable. Under the UN Charter, force is lawful only in response to an armed attack or with UN Security Council authorization. Even pre-emptive self-defense — long debated — requires a demonstrably imminent
Since being re-elected, US President Donald Trump has consistently taken concrete action to counter China and to safeguard the interests of the US and other democratic nations. The attacks on Iran, the earlier capture of deposed of Venezuelan president Nicolas Maduro and efforts to remove Chinese influence from the Panama Canal all demonstrate that, as tensions with Beijing intensify, Washington has adopted a hardline stance aimed at weakening its power. Iran and Venezuela are important allies and major oil suppliers of China, and the US has effectively decapitated both. The US has continuously strengthened its military presence in the Philippines. Japanese Prime
RSS