Robert Reich: Reining In ICE – OpEd

What should Democrats be demanding as a condition of releasing funds for the Department of Homeland Security? 

Over the last few weeks I’ve discussed several important conditions: agents must not undertake warrantless searches; use racial profiling; pick up suspected undocumented people from schools, hospitals, courts, or places of worship; or carry lethal weapons. 

Today I want to add an increasingly important condition:

Failure to obey any court order will immediately terminate all funding for ICE or the Border Patrol. 

Who can be against this? It turns out, many Republicans in Congress. 

Apparently Republicans don’t want to tie ICE’s or Border Patrol’s hands with the pesky responsibility of following court orders. 

Last week, Judge Patrick J. Schiltz — a Reagan appointee and top federal judge in Minnesota — accused ICE of violating nearly a hundred court orders in the month of January alone. He wrote: “ICE has every right to challenge the orders of this Court, but, like any litigant, ICE must follow those orders unless and until they are overturned or vacated,” adding that “ICE is not a law unto itself.”

Judge Schiltz had issued an order on January 14 that the government must give an immigrant a bond hearing or release him within seven days. Seven days passed without a hearing or release. Judge Schiltz then took what he called the “extraordinary step” of ordering Todd Lyons, the acting head of ICE, to appear at a hearing on January 23 to explain why he shouldn’t be held in contempt for violating the January 14 order. 

“The Court acknowledges that ordering the head of a federal agency to personally appear is an extraordinary step, but the extent of ICE’s violation of court orders is likewise extraordinary, and lesser measures have been tried and failed. 

Judge Schiltz said he would cancel the Friday hearing if the government released the man by then. The government released him. Schiltz canceled the hearing.

But threatening the acting head of ICE with contempt of court is a cumbersome way to get ICE to follow court orders. A threatened loss of funding for ICE and Border Patrol is necessary. 

Meanwhile, during an immigration hearing on Tuesday, a Department of Homeland Security attorney said it was like “pulling teeth” to get the Department of Homeland Security, ICE, and the Justice Department to follow court orders. “The system sucks. This job sucks. I wish you could hold me in contempt so that I could get 24 hours of sleep,” she said.

Democrats should inform congressional Republicans who are objecting to conditioning continued funding on obeying court orders that it’s part of the job (and constitutional responsibility) of every public official — whether an agent of ICE or Border Patrol, or a member of Congress. 

While they’re at it, Democrats (and the rest of us) should make sure the public knows the extent to which ICE and Border Patrol agents have been violating court orders —and are still utterly lawless.

• This article appeared at Robert Reich's Substack