In the fight over Department of Homeland Security funding, Democrats have, for the first time under the second Trump administration, put both the White House and congressional Republicans on defense in the immigration battle.
Their strongest argument for restricting Immigration and Customs Enforcement is simple and superficially appealing: require the agency to obtain “judicial warrants” before arresting illegal immigrants. To most Americans, it sounds eminently reasonable: Deport the dangerous ones, but subject ICE to independent judicial review.
The argument is clever because it sounds like a middle ground. In reality, under current law, it is largely a legal impossibility. The truth is that most immigration violations — unlawful entry and unlawful presence — are civil matters, not federal crimes. Congress built the modern immigration system to operate primarily through an administrative and removal framework, not through the ordinary criminal process used in federal district court.
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ICE issues its own “administrative warrants” without needing approval from a judge. Once an illegal immigrant is arrested or served with a notice to appear, the case proceeds to immigration court. Those proceedings take place in a separate system run by immigration judges housed in the Department of Justice, not under DHS or ICE control.
The demand for judicial warrants is misleading because immigration matters fall under a separate court system run by independent judges inside the Justice Department, not DHS or ICE. Federal district courts have no role.
ICE cannot legally obtain a judicial warrant in most cases. Federal district courts don’t issue immigration detainers, and state courts fall outside federal jurisdiction. Worst of all, immigration violations are civil, so criminal warrants simply don’t exist for deportation cases. Even if ICE could and did seek such warrants in federal court, its already overloaded judges would be buried in requests.
The Democrats’ “fix” is a red herring that would paralyze ICE operations, including the deportation of dangerous criminal illegal immigrants. And that is exactly their point.
After the murder of 41-year-old Stephanie Minter at a bus stop in Fairfax County, Virginia, the county’s sanctuary policies came under scrutiny since the alleged killer is an illegal immigrant from Sierra Leone. Prosecutors dropped multiple attempted murder charges, reportedly because of victim noncooperation. Jalloh then walked out of the county jail because neither the district attorney’s office nor the jail notifies ICE or honors ICE detainers.
Virginia Democrats, including Gov. Abigail Spanberger (D-VA) and the state Senate majority leader, immediately blamed ICE. The agency had arrested Jalloh after a 2018 rape charge but released him because a judge ordered deportation to a third country that refused to take him.
Even the author of Fairfax’s sanctuary Trust Policy, Board Chairman Jeff McKay, claimed after the murder, “I stand in the corner of ICE taking advantage of situations where people have committed egregious crimes and deporting them. … Why was ICE not successful in dealing with an individual who was not here legally and had committed egregious crimes in our community?”
That view is shared by the overwhelming majority of Americans, who support deporting violent and dangerous criminal illegal immigrants but are lukewarm to hostile toward wider enforcement.
Democrats are on politically solid ground: “Deport the really bad guys, but constrain ICE with independent review.” They know full well that, under current law, no such mechanism exists, so ICE would grind to a halt. Their argument is cynical, but undeniably cunning.
Meanwhile, Republicans want to maintain the unpopular status quo and reject any attempt to “handcuff” ICE. That approach is foolhardy and a political loser.
The smarter play is to call their bluff. Give Democrats exactly the judicial warrants they demand, but only after Congress makes unlawful entry and unlawful presence federal crimes and authorizes immigration judges to issue those warrants.
Here’s how it works: Criminalize unlawful entry and presence, then route every case to immigration courts. ICE gets real judicial warrants for arrests and searches. Judges adjudicate under existing rules.
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GOP lawmakers should force the issue immediately. Call the bluff and demand a straight up or down vote on the compromise. If Democrats truly support removing the “worst of the worst” while checking ICE excesses, they will vote for this commonsense reform. If the judicial-warrant demand was always a Trojan horse to gut enforcement, then they will vote it down and face the political consequences.
Either way, Republicans will either break the impasse or expose the Democrats’ ICE hypocrisy.
Sean Kennedy is the president of Virginians for Safe Communities and a member of the Fairfax County Criminal Justice Advisory Board.