Discussing the hot-button issue of illegal immigration on the “Washington Watch” program, attorney Andy McCarthy said a leaked ICE memo deserves legal scrutiny because the 4th Amendment and its legal protections are at the heart of the issue.
The internal ICE memo advises federal agents an administrative warrant of removal gives them the legal authority to enter the residence of an illegal immigrant for removal. That warrant, known as Form I-205, is signed by an ICE official. So it is far different from a judicial warrant signed by a judge after a probable cause hearing.
The memo, signed by ICE Acting Director Todd Lyons, dates back to May of 2025.
In the U.S. Constitution and its Bill of Rights, the right to keep the cops from entering your home without probable cause and a warrant is found in the 4th Amendment.
With the fresh memory of King George’s troops searching their homes, and quartering in them at will, the colonists who wrote the Constitution included the 4th Amendment to prevent the new American government from enjoying such powers.
McCarthy told show host Tony Perkins the argument an administrative warrant gives ICE agents the right to enter a home is, at best, on shaky legal ground.
“There’s a lot of existing law that may be brought to bear but the bottom line is what they’re saying they can do, probably, they can’t do,” McCarthy advised.
McCarthy, a former U.S. assistant attorney in New York, allowed the legal argument from the Trump administration is not a “frivolous” one. That's because the removal process concludes with a hearing before a judge and a courtroom.
“So it’s not like the judicial courts don’t have anything to do with it at all,” McCarthy conceded. “But the Supreme Court has never said that such an administrative warrant is the functional equivalent of a judicial warrant, and that's what the confusion is.”
After the memo was leaked, the Trump administration has defended it but also stated the legal argument deserves to go before the Supreme Court.
Perkins, a former police officer, weighed in on the issue. He recalled asking a judge to sign an arrest warrant for a suspect, who had committed a crime, but Perkins had to show probable cause.
“That’s the oversight of the executive branch,” Perkins pointed out.
Citing the importance of the 4th Amendment, and the civil liberties it protects, McCarthy said that is why the legal issue is far bigger than illegal immigration.
“This is something that people have protected very carefully,” McCarthy cautioned, “because someone should be rightfully protected in their home.”
