Mike Johnson Wants To Spare ICE the Hassle of Getting the Right Warrant Before Forcibly Entering a Home

“Imagine if we had to go through the process of getting a judicial warrant.”

Those are the complaining words of Speaker of the House Mike Johnson (R–La.), who was voicing his support for the actions of U.S. Immigration and Customs Enforcement (ICE), which now claims that its agents have the right to forcibly enter private homes without first obtaining a warrant signed by a judge. According to ICE, its agents may forcibly enter homes in certain immigration enforcement contexts based merely on a so-called “administrative warrant,” which is not actually a warrant at all, but is rather just a piece of paper signed by someone in the executive branch.

To fully appreciate the inherent lawlessness of the Johnson view, simply replace the phrase “getting a judicial warrant” with any constitutional requirement that you like in the above-quoted statement. For example:

• “Imagine if we had to go through the process of guaranteeing freedom of speech.”
• “Imagine if we had to go through the process of respecting the right to keep and bear arms.”
• “Imagine if we had to go through the process of paying just compensation when private property is taken for a public use.”

You get the idea.

When a government mouthpiece complains that it would be too difficult to follow the commands of the Constitution in a given context, that’s 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 caselaw. In California v. Lange (2019), for example, the U.S. Supreme Court declared, “we are not eager—more the reverse—to print a new permission slip for entering the home without a warrant.” At issue in that case was a decision by the California Court of Appeals which said that a police officer may always enter a suspect’s home without a judicial warrant if the officer is in “hot pursuit” of the suspect and has probable cause to believe that 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 circumstances shows an emergency—such as imminent harm to others,” the Court said, “the police may act without waiting.” But “when the nature of the crime, the nature of the flight, and surrounding facts present no such exigency,” the decision held, “officers must respect the sanctity of the home—which means they must get a warrant.” Indeed, the opinion stated, “when the officer has time to get a warrant, he must do so—even though the misdemeanant fled.”

The Lange decision also contained a helpful reminder of the warrant requirement’s deep roots in Anglo-American jurisprudence by quoting from a venerable British common law judgment:

“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 getting a judicial warrant.”

But if an ICE agent has the time to obtain a piece of paper signed by a superior in the executive branch before heading out to bust down somebody’s front door, then that agent also has the time to obtain a real warrant signed by an actual judge. As the Supreme Court instructed in Lange, “when the officer has time to get a warrant, he must do so.” The “sanctity of the home” demands it under our Constitution.

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