After the killing of two Minneapolis citizens by Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) officers in January, Democrats refused to approve further funding for the Department of Homeland Security (DHS) without new reforms. As a result, starting on February 14, no funding has been available for most DHS agencies: TSA, FEMA, CISA, and Coast Guard employees have either been furloughed or are required to work without paychecks (although backpay is expected).
ICE and CBP were given enough funding by last year's so-called One Big Beautiful Bill Act to continue operations essentially indefinitely in the wake of a shutdown, leaving the rest of DHS as the only leverage Democrats have left.
What do Democrats want?
Democrats' leadership in Congress released a list of demands 10 days before DHS funding was set to expire, including:
- Requiring a judicial warrant to enter private property (as the Constitution's Fourth Amendment already requires)
- Verification of non-citizenship before detention and banning racial profiling and profiling based on job, language, and accent
- Prohibiting immigration enforcement officers from wearing masks and requiring them to wear ID and body-worn cameras
- Prohibiting arrests at hospitals, schools, daycares, churches, polling places, and courts
- Allowing states to investigate potential crimes committed by DHS and to sue DHS over detention conditions, and requiring state coordination for large-scale operations
- Safeguards including immediate access to attorneys for detainees, allowing states to sue DHS for violations, and unlimited congressional access to ICE facilities
- Prohibit tracking and databases of individuals engaged in activities protected by the First Amendment
- Codification and enforcement of a use of force policy
Doesn't the Constitution already require some of that?
Some of these demands include rights that you'd think were already covered under the Constitution: Judicial warrants are required by the Fourth Amendment to force entry or engage in search or seizure in any place with a reasonable assumption of privacy such as one's home. But ICE officers have been trained to use administrative warrants in place of a judicial warrant for this purpose. Administrative warrants do provide authority to make arrests, but don't provide authority to engage in a search protected by the Fourth Amendment, including forced entry into someone's home.
Racial profiling seems like it violates the Equal Protection Clause of the Fourteenth Amendment but the Supreme Court, via its shadow docket, stayed a lower court decision which barred federal officers from detaining people based on skin color, speaking Spanish, or working low-wage jobs.
And the right to due process requires that undocumented immigrants and U.S. citizens alike receive the opportunity to challenge their detention, which the Supreme Court reaffirmed last year, but detainees are often not given sufficient access to an attorney for such a challenge.
Where Policy Change Meets Public Safety
ICE already has a use of force policy which states that they may only use deadly force when they have a "reasonable belief that the subject of such force poses an imminent threat of death or serious bodily injury." DHS quickly released statements after the killings of Renee Good and Alex Pretti claiming that they posed such a threat, despite video footage of both events contradicting those claims. The department has known since March of last year that use of force against civilians soared, but has done little to address or identify the cause of the increase.The Department has also failed to cooperate with independent investigators in Minnesota, calling into question whether use of deadly force is being properly investigated and addressed.
DHS cites an increase in threats to agents as a reason why they must remain masked and unidentified. ICE officers do carry badges, and are legally required to identify themselves when it's practical and safe to do so, at their discretion. Agents have been doxxed and fear potentially violent retaliation for carrying out their orders. But cases of masked imposters are also on the rise, which creates an environment of uncertainty in how to respond when stopped by someone claiming to be with ICE.
There was a bill on the table to fund DHS including for the purchase of body-worn cameras, but it did not include a mandate for every agent to use them.
The Response
While Republicans have demonstrated some willingness to concede the use of bodycams, most of the other demands appear to be non-starters. The White House countered the Democrats' demands, but did not publish the details. Democrats called the counterproposal "insufficient and incomplete" on February 10.
Senate Democrats sent a new proposal to Republicans on February 17 but similarly have not revealed the details. Days before, Senate Minority Leader Chuck Schumer reiterated their demands on CNN's State of the Union in three main objectives: no roving patrols, accountability to local governments and a code of conduct, and agent identification with masks off. He compared the Democrats' demands to police departments across the country, asserting that ICE should be held to the same standards as other law enforcement officers.
The Outlook
Negotiations continued behind the scenes during last week's recess, and Congress is scheduled to reconvene on February 23. Both parties appear to have their heels dug in on the issue, and it's unclear how long either side will be willing to hold out, especially if TSA operations at airports become restricted (the Trump Administration opted to pause TSA's Pre-Check, something seemingly not required by a shutdown, but reversed that decision hours later) or FEMA underperforms in a potential disaster. A proposal was made before the shutdown to find a way to fund DHS's other agencies, but it gained little traction because doing so would have stripped both sides of any leverage.
As a result, funding for these DHS agencies could be held up indefinitely while ICE and CBP continue on.
Democrats’ Demands for ICE Reform was originally published by GovTrack.us and is republished with permission.
