Opinion - Why are ICE agents running amok? Because they can.

Yahoo

06-06-2025

As the Trump administration pushes for more mass deportations, law enforcement officers from the Department of Homeland Security are suddenly everywhere.
In San Diego, Homeland Security officers conducted a SWAT-style raid on a restaurant, handcuffing 19 employees over an hour and slamming the manager against a wall in the process. Eventually, they arrested four people. The raid was so heavy-handed that the officers had to deploy flashbang grenades to escape from the angry crowd that gathered in response.
Even members of Congress aren't safe. Last week, Homeland Security officers forced their way into Rep. Jerry Nadler's (D) New York office without a warrant. When one of the staffers protested, she was handcuffed and detained.
The cases you hear about are only the tip of the iceberg. Federal officers are fanning out across the country, conducting raids, traffic stops, even scooping people up at courthouses when they appear for immigration hearings and carting them away in leg irons and shackles — harsh treatment that you seldom see even when felons are arrested.
This heavy-handedness and cruelty isn't a glitch — it's intentional, as Secretary of the Department of Homeland Security Kristi Noem and Tom Homan, President Trump's border czar, attempt to frighten immigrants into leaving the country. Even legal residents and American citizens are getting caught up in the crackdown.
And the worst part is, while things like barging into a congressman's office and detaining his staffers aren't legal, there is nothing anyone can do about it. If Immigration and Customs Enforcement agents force their way into your house without a warrant, slap you around and detain your family at gunpoint while conducting an illegal search, you have no way of getting your constitutional claims into federal court. As a practical matter, these agents are above the law and cannot be held accountable for violating your constitutional rights.
Why this is true is yet another example of our system of checks and balances failing to appreciate the risk of a president deciding to simply the the law.
After the Civil War, to ensure that states abided by the Constitution, Congress passed 42 U.S. Code 1983, giving individuals the right to sue in federal court when their constitutional rights had been violated under color of state law. At the time, it was inconceivable that there should be a similar need to sue for constitutional violations by the federal government. For one thing, law enforcement was almost exclusively under state control — the FBI was not founded until 1908. Moreover, the federal government was seen, generally, as the perennial good guy and the guarantor of constitutional rights, a position it held right through the civil rights era.
As the federal government and federal law enforcement grew, this became more and more untenable. So in 1971, in a case called Bivens v. Six Unknown Fed. Narcotics Agents, the Supreme Court created what is known as a 'Bivens action' as an analogue of section 1983, giving individuals the right to sue in court when their Fourth Amendment rights were violated under color of federal law.
Since then, the Supreme Court has been reluctant to extend the reach of Bivens, ultimately holding in 2022 that no one could ever bring a legal claim for excessive force — or any constitutional claim — against a federal officer enforcing immigration laws.
This is dangerous, especially now. The rule of law is not supposed to run on the honor system. Section 1983 and Bivens actions are not just about monetary damages. They are a way for citizens to hold their government accountable. Officers' understanding that they may someday have to explain their actions is a powerful deterrent to bad behavior. Nobody likes accountability, but it makes all of us, including police officers, better people. The current system of 'what happens in ICE, stays in ICE' is the opposite of that.
Unchecked by the courts, ICE's behavior will only get worse over the next three and a half years. Even the most well-meaning bureaucracies are subject to mission creep, so you can expect Noem's troops to expand their activities well beyond detaining immigrants. The Homeland Security officers who invaded Nadler's office were hunting for protesters, and Homan has already threatened state officials and even members of Congress with arrest for 'interfering' with ICE.
When it comes to constitutional rights, no man is an island. The threats, performative cruelty and denials of basic due process are not attacks on immigrants. They are attacks on the rule of law itself.
You should be just as upset and concerned by the Guatemalan snatched off the street and hustled onto a plane with no notice and no due process as you are by the sobbing staffer handcuffed in Nadler's office. In the eyes of our Constitution, they are all of us.
Chris Truax is a charter member of the Society for the Rule of Law and an appellate attorney.
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