With public anger mounting over aggressive raids and deaths in detention, immigration reform advocates are advancing a broader agenda aimed at limiting detention, strengthening oversight, and reducing the federal government’s enforcement powers.
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There’s hardly been a more visible manifestation of the Trump administration’s authoritarian push than the expanding power and detention footprint of Immigration and Customs Enforcement (ICE). Whether it’s ICE itself or the many other federal agents delegated to it, federal immigration agents have sparked public anger by occupying politically oppositional cities, arresting organizers, and administration opponents, injuring and killing protesters, deporting longtime residents, and operating inhumane detention facilities that are expanding nationwide.
Democrats in Congress recently sparked a record-breaking funding shutdown of the Department of Homeland Security that ended with no additional funding for immigration enforcement, though no significant reforms, either. Yet the last year has only highlighted that the system of ICE and Customs and Border Protection enforcement and detention can be weaponized, and they must be re-examined from the root, reformulated, and significantly constrained. Doing so will require a mix of legislative and court action, the buy-in of local and state officials, and redefining the purpose and breadth of immigration detention in concept. These changes, while significant, are far from unprecedented, and in fact, can be thought of as corrections for a system gone rogue; the fuel for undertaking them is already growing in the form of popular disgust in the face of immigration abuses, which have become the face of federal overreach.
The Legal Frameworks Propping Up Today’s Immigration Policy
A lot of what we think of as more or less innate to the immigration adjudication and enforcement systems is not that old. ICE itself has only existed since 2003, when it was created along with the rest of the Department of Homeland Security in the wake of the 9/11 attacks. While its precursor — the Immigration and Naturalization Service — had its own issues, splitting it up into ICE, CBP, and the U.S. Citizenship and Immigration Services left each as their own little fiefdoms with their own cultures within a now explicitly national security-focused department. Unwinding DHS altogether won’t be enough, but it’s a good start.
If 9/11 turbo-charged a heavy-handed approach, though, the scaffolding for it existed long before. A significant inflection point came in 1996, as President Bill Clinton signed two bills — the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) and the Antiterrorism and Effective Death Penalty Act (AEDPA) — which cumulatively shifted who is subject to immigration enforcement, what avenues of relief they have, and how the enforcement is done. In keeping with that era’s panicked response to perceptions of spiraling crime, AEDPA created and IIRIRA expanded the categories of people who could be deported, required deportations in certain cases, and established mandatory detention for classes of noncitizens convicted of a range of offenses, including misdemeanors.
It is these laws that have granted the contemporary ICE the power and sometimes even the requirement to detain huge swaths of immigrants, an outcome that even a bipartisan cross-section of the legislators that voted for them in the ’90s seemed caught off-guard by. The Trump administration has subsequently tried to reinterpret them to give itself the power to indefinitely detain all immigrants who had entered the country without authorization, which has been upheld by the Fifth and Eighth Circuit Courts of Appeals and struck down by the Second, setting up the question to go to the Supreme Court. Already, SCOTUS had ruled in 2018 that immigrants held in mandatory detention were not entitled to bond hearings, setting more groundwork for Trump to balloon the detained population.
“All the time, so many people are like ‘What ICE is doing is totally illegal,’ and actually, for the most part, what ICE is doing is not illegal, and most of it’s legal based on the 1996 laws,” said Silky Shah, the executive director of the Detention Watch Network. There’s no path to limiting the power of ICE and CBP and curtailing our nationwide system of immigration detention that doesn’t require repealing these laws. To go further, Congress will not just have to reverse course, but significantly limit who is subject to detention in the first place. As things stand, immigration agents get to unilaterally determine they should detain someone, and then it’s up to the detainee to establish that they should be released. It’s basically the opposite of how things work in the criminal sphere.
A more sensical system would turn that on its head. “That would be a meaningful change, where the burden would be placed on the government to be able to say that this person needs to be detained,” said Adriel Orozco, senior policy counsel at the American Immigration Council. These circumstances are very limited, and in fact there is little “need” for immigration detention at all. While it can look identical to and in some cases even exist within a criminal detention facility, immigration detention is legally non-punitive; its sole purpose is to ensure that immigrants plausibly subject to removal do not flee or pose a threat to the community.
Reinstituting Detainee Rights
Even noncitizens convicted of serious crimes are not being held punitively, as that is doled out separately by the criminal justice system. There are plenty of alternatives available, including non-detained case management, which DHS piloted before discontinuing the program under Trump. There’s no reason we couldn’t bring the detainee population — now at a staggering over 60,000 people — to well below 10,000, which was a reality as recently as during the Covid-19 pandemic in 2020.
ICE is now so fast and loose with detention that attorneys around the country are filing constitutional habeas corpus petitions to get clients out, though the government has often been ignoring or undercutting these rulings, which should be met with real efforts at contempt of court to hold executive officials accountable. Without the intervention of a federal court, the only way out of detention (other than deportation) is to win bond or full-on immigration relief from immigration judges, who are not Article III judges like the federal judiciary we are familiar with. Immigration judges are employees of the Justice Department who can be hired, fired, and overruled by the politically-appointed attorney general. “These are what the government calls inferior officers, right? They believe they have complete control over them, and they’re exerting that pressure,” said Orozco.
Indeed, the Trump administration has fired over a hundred judges so far for what seems like not strictly adhering to its mass deportation mandate, and it is hiring new ones under the title “deportation judges.” The appellate-level Board of Immigration Appeals, also within the DOJ, has been transformed into a clearinghouse for Stephen Miller wish-list items, setting precedents that make it harder for immigrants to avoid detention and deportation. As former Board of Immigration Appeals Chair Paul Wickham Schmidt told me a couple of years ago, “there are the rules, and then there’s immigration, which is sort of its own thing, where things that you couldn’t do in administrative law happen all the time… You’d probably have a due process problem if you treated people in traffic court or misdemeanor court the way we treat asylum-seekers in immigration court.”
Curbing ICE’s legal ability to target and arrest and deport large numbers of people will need to reevaluate this adjudicative system, with the clearest solution being to take the courts out of the DOJ entirely and make them independent. Legislation to that effect has been introduced a few times, including currently by California Rep. Zoe Lofgren. That, in tandem with the creation of a right to free counsel for immigration courts — which are civil and therefore don’t have the same constitutional requirement for representation that the criminal courts do — would do a lot to stop the immigration courts from being a conveyor belt to the removal orders that ICE then uses to quickly and indefinitely detain immigrants. Plenty of research has shown, unsurprisingly, that representation rates dramatically increase success rates at not only winning outright but getting immigrants out of detention.
In circumstances where people are still physically detained, conditions of confinement are both morally reprehensible and likely unconstitutional under the 8th Amendment, which requires basic care for everyone in government detention. Since Trump began his second term, 48 people in ICE detention have died, largely from medical negligence and rampant violence. The administration has responded by gutting detention oversight, including getting rid of the detention ombudsman and attempting to block congressmembers from conducting oversight. Transparency is the minimum for accountability, which means an oversight and public reporting structure must be reinstated and solidified.
Beyond that, any improvement in conditions will at least partially have to run through disentangling both detention and the broader enforcement panorama from litanies of shady contractors and their profit motives. ICE runs almost no detention facilities itself, instead relying on contracts and agreements with other federal, state, and local agencies or private prison companies. The largest of these are the publicly traded CoreCivic and the GEO Group, on which ICE is relying for its current push to massively expand detention.
Both of these companies have limited cash on hand, over $1 billion in debt, and rely both on consistent contracts and significant detention growth. If they can cut per-detainee spending to the bone, they can make their balance sheets work. Both companies’ stock prices have fallen in recent months, however, because analysts determined detention wasn’t growing fast enough. The revolving door between government and the detention giants produces situations like that of David Venturella. A longtime, high-level GEO executive, he was given a waiver and hired to lead ICE’s detention expansion in a way that would enormously benefit his former (and potentially future) employer. Enforcement is now also completely entangled with private providers like Palantir, who are directly incentivized to push for more surveillance and more arrests.
Dismantling Detention at the Local Level
To state the obvious, just because the federal government runs something itself doesn’t necessarily mean that it’s going to work well (just look at federal prisons). The executive clearly can’t self-police, which means the other branches must step up.
“Congress has the ability, if there are a number of inspections that a facility fails, then Congress can say, ‘we can shut down this facility,’” Shah said. It has not really used this power, nor its much broader power to cut off funding for ICE’s detention apparatus and expansion plans over conditions and lack of transparency. Doing so would reverse the massive funding influx bestowed on the agency by last year’s Big Beautiful Bill. As Orozco pointed out, instead of just clawing this money back, Congress could redirect some to things that would help keep immigrants out of detention, like hiring more immigration judges to process cases quickly and providing additional attorneys to immigrants without representation.
It also can’t exclusively fall to the federal government to reel in ICE. Immigration is probably the area of domestic law that is most heavily delegated to the executive; changing federal laws and having a Congress that takes its oversight functions more seriously is crucial. But it will also be up to states and localities to rein in federal overreach, both by refusing to cooperate and taking active steps to constrain federal operations.
As mentioned above, a huge and growing part of ICE’s detention infrastructure runs through contracts with sheriffs and local corrections departments that basically rent out space for immigration detainees. ICE has also been subcontracting out its interior and enforcement to local sheriffs and police forces through agreements known as 287(g)s, which authorize local law enforcement to engage in some immigration functions. Florida recently required counties to sign these agreements and pushed all cities to do so, which is an enormous force multiplier for ICE while shielding it from direct accountability.
A lot of the growing ground-level discontent with heavy-handed immigration enforcement can probably best be channeled into state and local efforts banning the use of detention space and police collaboration with ICE. “It’s a place in this moment… where we have more power, right? Like the ability to influence city councils, county commissions, state legislatures, those things are—in even red, purple states—having a pretty significant impact,” said Shah.
State and local officials also need to be thinking about using the tools available to them under a federalized system to safeguard their own populations. Even when ICE doesn’t use local detention, some cities have leaned on their own zoning and building code laws to block or limit its footprint, and several states have banned private detention altogether, though these have run into some legal hurdles. States have also moved to require agents to show their faces, allow people to sue under state law for constitutional violations, block warrantless arrests in certain locations, and so on.
In extreme cases, states can and should exercise police powers and prosecute agents who violate the law. Then there’s the basic unit of accountability, which is down to the individual. The Supreme Court has spent decades whittling the ability for people to sue federal officials for violating their rights down to near-impossibility. Congress should just codify it: If a federal agent violates the Constitution, then you can sue them individually for it, period.
All of this might seem ambitious, but most of it is just basic guardrails and returns to earlier approaches and modes of accountability. The time to pursue them is now, as public anger has coalesced around ICE as the authoritarian stand-in for an increasingly unpopular administration.