Brent Skorup
A few weeks ago, the AP and other news outlets obtained a whistleblower complaint alleging an illegal policy change at ICE. It appears that DHS changed ICE policy in May 2025 to allow agents to enter homes with an administrative warrant—rather than a judicial warrant—to arrest aliens who have been issued final orders of removal. This change in policy appears to have been made quietly. But after the whistleblower complaint and subsequent news coverage, DHS officials took to the pages of the Wall Street Journal and the DHS website to defend the policy and their use of “administrative warrants.”
That defense goes to the heart of the Fourth Amendment: Can executive officials authorize themselves to enter a home? Or must they obtain a warrant from a judicial officer?
The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
From an originalist perspective, I’m skeptical that administrative warrants satisfy these requirements. But courts, including the Supreme Court, have made the Fourth Amendment doctrine in this area complex. To evaluate DHS’s claim, we need to clarify what “administrative warrant” means, as the term encompasses very different legal instruments.
Two Different Types of Administrative Warrants
An administrative warrant generally refers to a warrant used in civil enforcement—typically immigration, commercial, or land-use regulation—rather than criminal prosecution. A traditional warrant—the kind featured in cop movies and true-crime shows—requires issuance by a judicial officer, probable cause, and particularity. Administrative warrants relax—or eliminate—one of those elements, but not all.
There are two major categories:
- Executive-issued immigration arrest warrants.
- Judicially issued regulatory inspection warrants.
The latter are used in commercial and land-use regulation. Their principal difference from traditional criminal warrants is that probable cause standards are relaxed, as the Supreme Court held in Camara v. Municipal Court (1967). For example, local zoning officials can enter and inspect rental properties during periodic “area inspections” to ensure compliance with housing codes. Those administrative warrants raise important questions but are a topic for another day.
Our focus here is the former category—immigration warrants. Their primary deficiency is that they dispense with the traditional requirement of issuance by a judicial officer.
Immigration Arrest Warrants
Immigration arrest warrants are issued by senior executive branch officials rather than by judges or magistrates. DHS says it resorts to administrative arrest warrants because “Congress hasn’t created a mechanism [for immigration officials] to obtain a judicial warrant.”
Congress’s decision to leave courts out of routine deportations likely reflects the Supreme Court’s longstanding deference to the political branches in immigration matters. In Yamataya v. Fisher (1903), for instance, the Court noted in dicta—citing international law principles—that Congress may “commit the enforcement of such provisions [immigration and exclusion], conditions, and regulations exclusively to executive officers, without judicial intervention.”
Immigration arrest warrants have existed for over a century, and courts and Congress have treated them as a lawful substitute for judicial warrants. While the word “warrant” was not used, an 1888 statute amended US immigration laws and authorized the Secretary of the Treasury “to cause” certain illegal aliens “to be taken into custody and returned to the country from whence [they] came.” Likewise, a 1907 law authorized federal officials to “take[] into custody” and deport an alien “upon the warrant of the Secretary of Commerce and Labor.” (HT to my colleague David Bier for this history.) In 1952, Congress transferred this administrative warrant-issuing power to the Attorney General, and this authority today is exercised by DHS officials.
The Supreme Court in Abel v. United States (1960) considered, but did not directly analyze, the permissibility of immigration officials relying on an immigration warrant to enter an alien’s residence (a hotel room). The Court emphasized the “overwhelming historical legislative recognition of the propriety of administrative arrest for deportable aliens.” It did not treat the entry into the dwelling as a constitutional problem.
Is Abel Good Law?
But as Professor Orin Kerr has pointed out, Abel is nearly 70 years old, and subsequent Supreme Court cases have undermined its dicta, especially with respect to law enforcement entry of the home. And, longevity of immigration warrants aside, it is fair to ask whether Abel’s Cold War facts influenced the Court’s approach. Abel was not an ordinary immigrant; he was suspected (and later confirmed) to be a Soviet agent. The hotel room search uncovered espionage materials, including microfilm concealed in a hollow pencil.
Two decades later, in Payton v. New York (1980), the Court held that the Fourth Amendment prohibits police from entering a home to make a routine arrest without a judicial warrant, absent exigent circumstances. The Court in Payton reiterated that physical entry into the home is “the chief evil against which the wording of the Fourth Amendment is directed.”
Importantly, Payton did not turn on whether the arrest was labeled civil or criminal. Nor did it carve out exceptions for immigration or regulatory law. It turned on the sanctity of the home and the requirement of judicial oversight before entering a home. If Payton states the rule—that the home may not be entered to effectuate an arrest without judicial authorization—then executive-issued immigration warrants are insufficient to justify forced residential entry.
Originalist View on Warrants
As Justice Kagan once quipped, “We’re all originalists now.” So what would the Founders have thought about executive-issued administrative warrants, particularly those authorizing entry into a home?
The Supreme Court’s decisions in Yamataya and Abel, which expressly or implicitly approved arrest warrants issued by the executive branch, rest largely on assertions about international law and historical practice. They contain little analysis of Founding-era understandings of the warrant clause.
Were there executive-branch arrest warrants at the Founding? Is there evidence that executive officials could enter a person’s home without prior approval from a judicial officer? The decisions are largely silent on those questions. The historical scholarship on this precise issue appears thin.
I see little evidence supporting executive-issued arrest and home-entry warrants at the Founding. If that is right, the administrative warrants at issue likely violate the Fourth Amendment’s original purpose and meaning.
With the proliferation of administrative warrants that have developed over a century (there are others besides the two categories mentioned above), it is very hard to identify a principled limiting rule. It would benefit judges—and executive officials assessing the legality of their own actions—to return to the core elements of a traditional warrant: issuance by a judicial officer, probable cause, and particularity. The Framers prioritized a separation of powers, and the traditional warrant process interposes a neutral arbiter so that the political branches are not judging the fairness of their own actions.
The Founders would likely be especially alarmed that administrative warrants—whether immigration warrants or regulatory inspection warrants—can authorize entry into homes. The Framers ratified the Amendment to prevent general warrants and other intrusive practices associated with British rule. Requiring judicial authorization would also reduce the risk of mistaken identity of citizens or home intrusions where the immigrant is cooperating with immigration officials. Relaxing the requirements of judicial issuance or probable cause has not only created a doctrinal mess; it has diminished the security of the home the Framers sought to preserve.