Last fall during the opening of the United Nations in New York City, I recognized the face of a federal officer from his days working in law enforcement in New Jersey and mine as a trial judge. We chatted and I asked him what he was doing. He told me he worked for Immigration and Customs Enforcement, ICE. I asked what ICE has to do with the U.N., and he told me that soon ICE will be everywhere.
When I asked if ICE has become a paramilitary force, answerable to the White House, he just smiled, as if to say, “Don’t quote me.” When I asked him why he was carrying two handguns and an AK-47 automatic rifle, he laughed and said, “I have more than you can see, judge!”
Since then, the president has used ICE to fulfill his promise of aggressive enforcement of immigration laws while cutting constitutional corners — even to the point of arresting Americans, immigrants and aliens without arrest warrants; arresting infants, killing two Americans who posed no threat to ICE killers and then lying about it.
Government law-breaking and lying are destructive of our social fabric. We have hired a government to protect our freedoms and enforce the laws and to do so consistent with the constitutional restraints we have theoretically imposed on all government.
Does the government work for us or do we work for the government?
The Supreme Court has already ruled that even though it is a crime to lie to the government, it is not a crime for the government to lie to any person. This dastardly judge-made rule that has no basis in history, constitutional text or morality has led to a host of false confessions and trick home invasions as federal agents have lied their way into folks’ thinking and into their living rooms.
But this lying was usually confined to unique law enforcement venues. Until now. Now, in Texas, Louisiana and Mississippi, the area of the United States subject to the US Court of Appeals for the Fifth Circuit, ICE lawbreaking and lying have received a judicial blank check to search and seize wherever, whatever and whomever it wishes.
Here is the back story.
Entering the United States illegally is a federal crime. When the government seeks to arrest a person it suspects has committed any federal crime, unless its agents have witnessed the crime being committed, the Fourth Amendment requires the government to present evidence of probable cause against the person to a federal judge and seek a warrant specifically describing the place to be searched or the persons or things to be seized.
Entering the US legally and remaining here beyond the time limits imposed at the time of entry is not a crime and thus cannot be the basis for an application for an arrest warrant, as no judge would sign such a warrant.
In the Fifth Circuit, the feds no longer need an arrest warrant. A panel of two judges ruled last weekend that ICE agents can authorize each other to arrest whomever they suspect of being in the US without authorization and do so without an arrest warrant or presentation of evidence.
In a case seeking the judicial resolution of two competing values — fidelity to the constitutional requirements of warrants and due process versus aggressive enforcement of federal immigration laws — the court rejected the supremacy of the Constitution, which requires judicial warrants and a fair hearing before a neutral arbiter, and approved ICE arrests without warrants, anywhere in the Fifth Circuit.
There is no court ruling quite like this anywhere in the federal system, and we have seen in Minneapolis why an arrest warrant is necessary and due process is vital: Because the government cannot be trusted to comply with the Constitution, because the government makes mistakes, and because all persons are presumed innocent.
The colonists suffered grievously in 1765 at the hands of British soldiers enforcing the Stamp Act by entering homes ostensibly looking for stamps. The act was so controversial that Parliament rescinded it after a year. But Parliament did not rescind the Writs of Assistance Act, which permitted the use of general warrants to enter onto private property and seize property and persons as the soldiers wished.
A general warrant is not based on probable cause of crime; it is based on governmental need. The Founders knew that this was a meaningless standard because whatever the government wanted, it would claim that it needed. A general warrant did not name the places to be searched or the persons or things to be seized. Rather, it authorized the bearer to search wherever he wished and seize whatever he found. Hence the Fourth Amendment outlawed general warrants.
By authorizing the use of administrative warrants — in which one ICE agent authorizes another to search or arrest, without naming the place to be searched or the persons or things to be seized — the Fifth Circuit has subjected all persons in three American states to the tender mercies of ICE agents mimicking the British use of general warrants.
How did we get here?
We got here because of congressional indifference to constitutional norms and a judicial inclination to policymaking. The judiciary is the anti-democratic branch of government. It was not created to reflect public sentiment or establish public policy — as Congress and the presidency were — but to stand fast in protecting all persons from the popular branches.
The whole purpose of an independent judiciary is to protect moral and constitutional values. But not in the Fifth Circuit where ICE can effectively arrest whomever it wishes, without evidence, without a judicial warrant, without knowing the name of the person arrested and without bail. Add to this the infamous Kavanaugh stop doctrine — in which Americans approached by ICE must be prepared to demonstrate citizenship on the streets — and we see a constitutional ice age approaching.
To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
COPYRIGHT 2026 ANDREW P. NAPOLITANO
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