New Dem proposal would restrict ICE's key tool to detain criminal illegal aliens

Warrant requirements pushed by Democrats would create a legal choke point on the efforts of Immigration and Customs Enforcement (ICE) agents to carry out President Donald Trump's immigration crackdown, an aim that Republicans blasted Tuesday amid negotiations to avoid a looming government shutdown.

"Federal law is quite clear that law enforcement has the authority to arrest illegal immigrants," Sen. Ted Cruz, R-Texas, said.

"Amazingly, when Barack Obama deported illegal immigrants, no one in the media was horrified before. And, yet, everyone now is clutching their pearls when gangbangers and violent criminals are taken out," Cruz said.

Lawmakers are racing against the clock to pass legislation before a partial government shutdown goes into effect Friday. But after a deadly confrontation between immigration authorities and protesters over the weekend in Minnesota — the second in under a month — Democrats look poised to stall funding for the Department of Homeland Security (DHS), which includes ICE.

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Republicans, who hold 53 seats in the Senate, require the help of at least seven Democrats to advance legislation over the 60-vote threshold to defeat a filibuster.

But Democrats have conditions for their support.

Warrant requirements have surfaced as one of the many concessions Democrats have floated as a necessary safeguard to avoid detentions that have sparked public unrest in Minnesota. That’s the position of Sen. Richard Blumenthal, D-Conn.

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"I think that’s a basic requirement of the Fourth Amendment," Blumenthal said, referencing the Constitution's protections against government searches and seizures.

Under current law, ICE does have some warrant requirements.

Scott Andrew Fulks, who runs a private law practice in Minnesota, explained that ICE operates through two different standards.

Like other law enforcement agencies, ICE must secure a judicial warrant from a judge to enter a person’s home, an area safeguarded against random entry by the constitutional protections mentioned by Blumenthal.

"A judicial warrant would have to be signed, of course, by a judge and would allow them to forcibly enter a home if someone did not open up the door for them," Fulks explained.

But in public, Fulks explained that ICE can detain targets with a lower bar — the authority granted by an administrative warrant. Administrative warrants allow ICE to detain individuals who have received an order of removal and depend only on the status of the individual, Fulks said.

He noted that’s where some of ICE’s more visible confrontations come from.

"ICE currently can also just simply detain people or question people by asking them about their paperwork and whether or not they are an immigrant to the United States, whether they have lawful status in the United States or permanent residency or if they're a citizen," Fulks said.

Questions have emerged among Democrats about how loosely ICE is interpreting current requirements. Blumenthal noted that a leaked memo last week seemed to indicate ICE believed it had the power to enter personal residences without a judicial warrant.

"We received from two whistleblowers a secret memo showing that the acting director of ICE is authorizing ICE agents to break into people's homes, kick down the doors, storm into living rooms and bedrooms, arrest and detain people without a judicial warrant," Blumenthal said.

Fulks noted that expanding requirements for judicial warrants for public apprehensions would slow down the administration’s immigration crackdown on immigrants with a warrant order, which would only apply to individuals suspected of breaking federal law and shrink ICE's pool of possible detentions.

"Their messaging says they got 3,300 folks. Any person with a little bit of common sense knows that there are not 3,300 hardened [immigrants] with convictions in the state of Minnesota," Fulks said.

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"If the ultimate end goal is to make sure that the current administration's numbers are as high as possible, then that should be the aim and the method to get that done."

Republicans who were asked about the warrant requirements did not address the ongoing negotiations over DHS spending.

Sen. Rick Scott, a member of the Senate Committee on Homeland Security and Government Affairs, said he would look to preserve the way the agency operates now.

"I think they should follow the existing law," Scott said of ICE operations.. "I think the Democrats want a shutdown."