Mike Johnson Wants To Spare ICE the Hassle of Getting the Right Warrant Before Forcibly Entering a Home

“Consider whether we need to go through the process of getting a judicial order.”

These words of complaint House Speaker Mike Johnson (R-La.), who has voiced support for U.S. Immigration and Customs Enforcement (ICE) actions, claims its agents now have the right to break into private homes without obtaining an arrest warrant signed by a judge. According to ICE, its agents are able to break into homes in certain immigration enforcement contexts based solely on a so-called “administrative arrest warrant”; it’s not actually an order at all, but rather a piece of paper signed by someone in the executive branch.

To fully appreciate the inherent lawlessness of Johnson’s view, simply replace “obtain jurisdiction” in the above-quoted statement with whatever constitutional requirement you like. For example:

• “Imagine if we had to go through the process of guaranteeing freedom of expression.”

• “Imagine if we had to go through the process of respecting the right to keep and bear arms.”

• “Imagine if we had to go through the process of paying fair compensation when private property was taken into public use.”

You get the idea.

When a government spokesman complains that it would be too difficult to follow the Constitution’s commands in a particular context, this is a clear indication that the government has already violated (or plans to violate) the Constitution’s commands in that context.

The principle that law enforcement officers generally must obtain judicial authorization before entering a home is well established in Fourth Amendment jurisprudence. Inside California / Lange (2019), for example, the US Supreme Court declared: “We are not eager to issue a new warrant for trespassing—in fact, quite the opposite.” At issue in this case was a decision by the California Court of Appeals that said a police officer can always enter a suspect’s home without judicial warrant if the officer is in “hot pursuit” of the suspect and has probable cause to believe the suspect has committed a misdemeanor.

But the Supreme Court reversed that lower court decision because it violated the Fourth Amendment right to be free from unreasonable search and seizure. “When the totality of the circumstances indicate an emergency, for example, in the case of imminent harm to others, the police can take action without waiting,” the court said. However, the decision stated that “when the nature of the crime, the nature of the escape, and the surrounding facts do not constitute such a necessity,” “officers must respect the sanctity of the home, which means they must obtain a search warrant.” In fact, the opinion stated that “when the officer has time to obtain a search warrant, he must do so even if the criminal has escaped.”

Lange The judgment also contained a useful reminder of the deep roots of the warrant requirement in Anglo-American jurisprudence by quoting a respected English common law decision:

Lord Chief Justice Pratt declared in 1763 that “to trespass into a man’s house” was to attack the “liberty of the subjects” and “destroy the liberty of the kingdom.” That was the idea behind the Fourth Amendment.

Which brings us back to Johnson; “imagine if we had to go through the process of obtaining a judicial arrest warrant,” he lamented.

But if an ICE agent has time to get a piece of paper signed by a superior in the executive branch before going out to break down someone’s front door, then that agent also has time to get a real arrest warrant signed by a real judge. As instructed by the Supreme Court. Lange“When the officer has time to obtain a warrant, he must do so.” According to our Constitution, the “sanctity of the home” requires this.

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