“Imagine if we had to go through the process of getting a judicial warrant.”
These are the words that complain of the Speaker of the House Mike Johnson (R–La.), who was expressing his support for the actions of the Immigration and Customs Enforcement of the United States (ICE), which is now claiming that its agents have the right to enter by force into private homes without first obtaining a warrant signed by a judge. According to ICE, its agents can forcefully enter homes in certain immigration enforcement contexts based solely on a so-called “administrative warrant,” which is actually not a warrant at all, but rather just a piece of paper signed by someone in the executive branch.
To fully appreciate the inherent illegality of the Johnson view, simply replace the phrase “obtained a judicial mandate” with any constitutional requirement you like in the statement quoted above. For example:
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“Imagine if we had to go through the process of guaranteeing freedom of speech.”
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“Imagine if we had to go through the process of respecting the right to keep and bear arms.”
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“Imagine if we had to go through the process of paying fair compensation when private property is taken for public use.”
You get the idea.
When a government speaker complains that it is too difficult to follow the commands of the Constitution in a particular context, that is a dead giveaway that the government is already violating (or planning to violate) the commands of the Constitution in that context.
The principle that law enforcement must generally obtain a judicial warrant before entering a home is well established in Fourth Amendment case law. Phil California v. Long (2019), for example, the United States Supreme Court stated, “we are not eager—quite the contrary—to print a new permission slip to enter the home without a warrant.” At issue in that case was a ruling by the California Court of Appeal that said a police officer can always enter a suspect’s home without a warrant if the officer is “in search” of the suspect and has probable cause to believe the suspect has committed a misdemeanor.
But the Supreme Court overturned that lower court ruling because it violated the Fourth Amendment right to be free from unreasonable search and seizure. “When the totality of the circumstances shows an emergency—such as imminent harm to others,” the Court said, “the police can act without waiting.” But “when the nature of the crime, the nature of the flight, and the surrounding facts present no such exigency,” the decision held, “officers must respect the sanctity of the home—which means they must obtain a warrant.” Indeed, the opinion stated, “when the officer has time to get a warrant, he should do so—even if the violation escaped.”
the Long decision also contained a useful reminder of the warrant requirement’s deep roots in Anglo-American jurisprudence by quoting from a venerable British common law sentence:
“To enter a man’s house” without a proper warrant, Lord Chief Justice Pratt proclaimed in 1763, is to attack “the liberty of the subject” and “destroy the liberty of the kingdom.” That was the idea behind the Fourth Amendment.
Which brings us back to Johnson, who whined, “imagine if we had to go through the process of having a judicial warrant.”
But if an ICE agent has time to get a piece of paper signed by a superior in the executive branch before going out to knock down someone’s front door, then that agent also has time to get a real warrant signed by an actual judge. As the Supreme Court ordered in Long“when the officer has time to take a warrant, he should do so.” The “sanctity of the home” requires it under our Constitution.
The post Mike Johnson Wants to save ICE the trouble of getting the right warrant before forcing his way into a home appeared first on Reason.com.