Judicial vs. administrative warrants: the legal fault line

At issue is a fundamental distinction in immigration law.

Judicial warrants are tied to federal criminal offenses and require a judge’s approval. Immigration enforcement, by contrast, relies on administrative warrants issued under authority granted by Congress in the Immigration and Nationality Act.

Those warrants allow ICE to arrest and remove noncitizens who are unlawfully present or subject to final orders of removal, even if they have not committed a standalone federal crime.

Democrats now want ICE to use judicial warrants for arrests instead.

Former ICE leadership warns of enforcement collapse

Jonathan Fahey, who briefly served as Trump’s acting director of ICE in his first term, told the Washington Examiner that such a requirement would make immigration enforcement functionally impossible.

“The only judicial warrant you can get is for a federal crime,” Fahey said. “There is no judicial mechanism to arrest someone solely for being here illegally. If you impose that standard, ICE simply cannot do its job.”

Fahey said the result would be de facto amnesty for most illegal immigrants, including those convicted of serious state crimes such as domestic violence, sexual assault, or repeat drunk driving.

“So if you have any legal alien, and say they commit domestic violence in wherever Minnesota, wherever they get released on bail or get released after their sentence, ICE couldn’t arrest that person under a judicial warrant,” Fahey said.

Republicans argue that the outcome is not theoretical but inevitable if Democrats’ demands are enacted.

“The demand for judicial warrants is a poison pill,” Bill Essayli, the first assistant U.S. attorney for the Central District of California, wrote on X. “It would effectively provide amnesty to illegal immigrants who have not committed a federal felony.”

The ICE memo that reignited the fight

Democrats’ push intensified after media reports about a May 12 internal ICE memo from acting Director Todd Lyons stating that officers may rely on administrative warrants to arrest individuals subject to final orders of removal inside their residences.

The memo says DHS lawyers concluded that neither the Constitution nor immigration statutes prohibit that practice, even though ICE historically exercised caution in doing so.

The guidance was immediately portrayed by Democrats as lawless overreach. It cut against the advice liberal activists have long given to illegal immigrants, which is to keep their doors closed and refuse to grant entry to immigration officers who don’t have a warrant.

Democrats frame warrant demands as constitutional guardrails

Sen. Richard Blumenthal (D-CT), who received the memo from whistleblowers, has argued that requiring judicial warrants for immigration enforcement is a basic constitutional safeguard.

“Who would be against judicial warrants for an arrest? It’s the Fourth Amendment,” Blumenthal told the Washington Examiner. “Who would be against body cameras? Police across the country, at the local level, have them all the time.”

Blumenthal said Democrats are seeking to “take back control of a rogue agency” and insisted the proposed restrictions would not prevent ICE from carrying out its mission.

“These kinds of common sense reforms ought to be supported by the House as well as the Senate,” he said. “They should be eager to adopt constraints and reforms on ICE that the American people want.”

Courts have already addressed the question, former DOJ official says

Chad Mizelle, a former chief of staff to Attorney General Pam Bondi, said this week that the memo reflects settled law, including binding appellate precedent that Democrats are now attempting to override through appropriations.

This may be what you *want* the law to be. But it’s decidedly NOT the law in Minnesota or the 8th Circuit.

Read the en banc court’s decision in US v Lucas. The court held, plain as day, admin warrants suffice for entering the home of a fugitive. Case closed. https://t.co/9h11z1IHmU

— Chad Mizelle (@chad_mizelle) January 23, 2026

In United States v. Lucas, the U.S. Court of Appeals for the 8th Circuit, sitting en banc, expressly approved the use of an executive branch administrative warrant to enter a home. While Lucas did not involve immigration enforcement, the court cited approvingly the administrative warrant process used to arrest and detain illegal aliens.

The ruling is especially significant because illegal aliens are recognized to have a lesser privacy interest than U.S. citizens under Fourth Amendment jurisprudence, a point immigration hawks say Democrats gloss over.

However, some constitutional law experts say the specific case, settled by an opinion weighed by the full 8th Circuit, might have been too fractured to establish any conclusive precedent.

“Five judges joined a plurality opinion saying that the Fourth Amendment was not violated in part because of the administrative warrant … Three more judges agreed that there was no violation, but they did not reach the issue of whether the administrative warrant was valid … [but] Five judges said that the use of the administrative warrant was invalid,” Stanford Law School professor Orin Kerr wrote for Reason last week.

In Kerr’s view, the administration has grounds to stand on with the precedent set in Lucas. But he warned, “There are problems, and those problems lead me to think that the plurality opinion in Lucas doesn’t help the Administration as much as it would like.”

Minnesota shootings add political pressure

The fight over ICE authority has unfolded amid heightened political pressure following two fatal enforcement encounters with protesters in Minnesota this month, which Democrats have cited as evidence that federal immigration operations require new statutory limits.

Federal agents shot and killed Renee Good earlier this month during an enforcement operation, followed weeks later by the fatal shooting of Alex Pretti during another federal encounter on Saturday. While the circumstances of both incidents remain under investigation, Democratic lawmakers have pointed to the cases to justify new restrictions on ICE tactics and arrest authority.

Republicans argue that the backlash to those incidents is being used to justify sweeping policy changes that would undermine immigration enforcement nationwide.

GOP warns rhetoric and restrictions will fuel chaos

Sen. Eric Schmitt (R-MO) told the Washington Examiner that requiring judicial warrants would paralyze routine ICE operations and embolden interference with federal agents carrying out the law.

“The solution is very simple, which is to let ICE do their jobs,” Schmitt said. “These operations are happening all over the country. You just don’t see these sorts of incidents.”

Schmitt warned that Democratic rhetoric surrounding the Minnesota shootings has helped create a volatile environment.

“When you have elected leaders telling people they should get in the face of ICE while they’re conducting operations, that’s dangerous,” he said. “Protest all you want. You don’t get to interfere with ICE operations.”

A broader package to rein in DHS

Republicans argue that the judicial warrant demand is not an isolated reform but part of a coordinated effort to tie ICE’s hands operationally.

Senate Minority Leader Chuck Schumer (D-NY) said Wednesday that Democrats are unified around a package of DHS restrictions, including ending roving patrols, altering warrant rules, imposing a uniform code of conduct and accountability standards, banning masks, and mandating body cameras for agents.

All of those proposals had already been gaining traction inside the Democratic caucus earlier this week.

Supporters say the changes are needed to restore accountability. Critics say they are designed to cripple enforcement while appearing reasonable on paper.

Enforcement already under strain in the courts

The debate is unfolding as ICE already faces mounting resistance in the courts, particularly in Minnesota.

An analysis by MS NOW found that in 61 detention challenges last week, judges ruled against the administration in all but one case, despite a mix of Republican- and Democratic-appointed jurists.

Layering a judicial warrant requirement on top of existing legal resistance would effectively shut deportations down altogether, Fahey argued.

“You would make every jurisdiction a sanctuary jurisdiction by force of law,” Fahey said. “Even places that want to cooperate would be required to release illegal aliens because ICE would lack authority to take custody.”

Competing endgames as deadline nears

Blumenthal, however, has dismissed Republican warnings as fearmongering and accused the GOP of blocking reforms for political reasons.

“They’re blocking reforms because they’re enthralled and in fear of Donald Trump,” Blumenthal said. “On the merits, they have to be for what we’re advocating.”

Some Democrats on Wednesday signaled they are willing to decouple DHS funding from enforcement policy to buy time for more negotiations.

Sen. King says he would accept a CR on DHS funding to avert a partial shutdown and give Congress more time to put in restrictions on ICE

— Igor Bobic (@igorbobic) January 28, 2026

The Huffington Post reported Wednesday that Sens. Angus King (D-MN) and Jeanne Shaheen (D-CT) are open to passing DHS funding through a short-term continuing resolution to avert a shutdown while Congress debates restrictions on ICE.

SCHUMER LAYS OUT ICE DEMANDS TO AVOID GOVERNMENT SHUTDOWN

Overall, former administration officials like Fahey say Democrats’ demands are intended to look convincing on the surface but actually serve to undermine immigration enforcement.

“This always gets sold as a reasonable middle ground,” Fahey said. “But once you understand how the system actually works, it’s obvious what it does. It ends deportations without ever having to say so.”

David Sivak contributed to this report