How to Rein in ICE

What to do short of abolishing it

Time is running down on temporary funding for the Department of Homeland Security. Democrats submitted a ten-point plan, complete with legislative language. The response, according to Democratic House and Senate leadership, was “both incomplete and insufficient in terms of addressing the concerns Americans have about ICE’s lawless conduct.” It seems inconceivable that a deal will be reached and voted upon by Friday. Another mini-shutdown or another short-term continuing resolution seems to be the most realistic outcome.

The argument that ICE (and Border Control) cannot be reformed and therefore must be dismantled is compelling. When an entity’s institutional culture is so deformed, and its ranks are riddled with abusive, lawless, emotionally and ethically unfit characters, then the case for knocking it down and starting over sounds attractive. However, as a political matter, Democrats do not currently have the votes to pull it off; as a practical matter, we need some entity to perform certain immigration and border functions.

Democrats would be wise, then, to think of the current push for reform as the beginning, not the end, of refashioning ICE, Border Control, and the entire Department of Homeland Security. The issue before them this week is: What meaningful reforms can they get passed in the short run to save lives, reduce terror inflicted on mostly Hispanic and Black communities, and protect constitutional rights?

Armed immigration agents block a street in Minneapolis on Jan. 12. (Chad Davis via Wikimedia Commons)

It’s easy for pundits to dismiss “half measures,” but there are men, women, children, and entire communities for whom that response is wholly unsatisfactory. Responsible lawmakers have an obligation to help as many of ICE/Border Patrol’s victims — and potential victims — as possible.

As a preliminary matter, there is an urgent issue to be addressed before getting into the thick of the debate. The 5^th Circuit has essentially blessed concentration camps in a monstrous decision last week. In adopting a fringe position (rejected by the vast majority of federal courts) that anyone in the country who is undocumented can be locked up without bail, the court set the stage for mass incarceration and approved a system of shuttling detainees from all over the country to Texas, to be held in inhumane, substandard conditions.

Constitutional guru Steve Vladeck explains:

[T]he Trump administration’s novel interpretation of a 29-year-old statute that five previous presidents (including Trump) had interpreted differently is not just the putative basis for so much of the controversial behavior in which ICE, CBP, and other federal agencies have been engaged over the last six months; it has been overwhelmingly rejected by federal district judges from across the geographic and ideological spectrum….

[Nevertheless] a divided panel of the U.S. Court of Appeals for the Fifth Circuit adopted the extreme minority view—holding that, yes, the government can indefinitely detain without bond millions of non-citizens who have been here for generations; who have never committed a crime; and who pose neither a risk of flight nor any threat to public safety. The Fifth Circuit’s opinion was written by Judge Edith Jones and joined in full by Judge Kyle Duncan—two of the most reactionary, right-wing federal appellate judges in the country.

The case is even more appalling when you consider who is actually being detained. The Department of Homeland Security’s own data revealed that less than 14 percent of those picked up in the mass deportation scheme had charges or convictions for violent criminal offenses. As The Independent aptly put it: “It’s the first direct confirmation from DHS itself that the agency’s efforts to prioritize the targeting of such individuals (as Trump promised during his 2024 campaign and throughout 2025) has been a failure, and instead show that the president’s mass deportation program is affecting undocumented immigrants of all stripes.” Well, that is if you believe his intention all along was not a thinly disguised ethnic cleansing scheme.

The details are more appalling than the top-line number. Trump likes to talk about murderers, rapists, and gang members. Well, a grand total of less than 2% of those detained had homicide (.5%) or sexual assault charges or convictions (1.4%). Only 2% were accused gang members, but we know that is artificially high — given the number of “oh, they weren’t gang members after all” episodes we have heard. A full 40% have no criminal conviction whatsoever.

Congress can easily fix this: Prohibit the use of funds to ship detainees out of state. Cut off funding for any facility detaining anyone without bond unless they have committed a violent crime, are a flight risk, and/or pose a threat to public safety.

In crafting a potential deal, Democrats would be wise to keep in mind two principles. First, whatever specific reforms they can obtain are useless without enforcement in a regime that brazenly breaks the law. Any concrete limitations on federal shock troops must create private rights of action for individuals, states, and cities to go to court to enforce them and civil penalties for violations.

Second, many ideas are floating around for oversight controls and outside mechanisms to reel in ICE/Border Control. Just Security lists many such proposals (e.g., an independent review board to investigate lethal force incidents, required reporting for all incidents involving use of force, class action relief for victims, reactivation of the Office for Civil Rights and Civil Liberties, Office of the Immigration Detention Ombudsman, and the Office of the Citizenship and Immigration Services Ombudsman).

However, any rule mechanism that depends on internal action, oversight, reporting, auditing, etc., is useless in a regime that operates in bad faith. One need only listen to ICE and Border Patrol chiefs’ testimony to appreciate their determination to admit no error and convince us not to believe our own eyes. Instead, explicitly limiting federal immunity, i.e. “specifying that federal officers are immune from state-law criminal prosecution only when their conduct is both objectively reasonable and necessary to fulfill lawful federal duties—and that unconstitutional conduct is never reasonable,” carving out state and local authority to pursue prosecutions, and holding back funding to siphon off some of the giant slush fund hold the most promise.

It is not clear which, if any, of these reforms might be achievable. However, Republicans blocking the reforms should know that voters overwhelmingly disapprove of ICE and its abuses. Voters do not like goon squads — and they won’t vote for politicians who protect them.

After this battle, Democrats must begin to develop a plan for a wholesale redesign of DHS, relegation of Border Control to the border, and creation of a new internal border enforcement force. Voters need to understand which party stands on the side of fascist street thuggery, and which stands on the side of fundamental constitutional rights and simple decency.