The Fifth Circuit court rejected the supremacy of the U.S. Constitution and approved ICE arrests without warrants or fair hearings, reports Judge Andrew Napolitano.
Law enforcement personnel at ICE building in Broadview, Illinois, September 2025. (Paul Goyette, Wikimedia Commons, CC BY-4.0)
Last fall during the opening of the United Nations in New York City, I recognized the face of a federal officer from his days working in law enforcement in New Jersey and mine as a trial judge.
We chatted and I asked him what he was doing. He told me he worked for Immigration and Customs Enforcement, ICE. I asked what ICE has to do with the U.N., and he told me that soon ICE will be everywhere.
When I asked if ICE has become a paramilitary force, answerable to the White House, he just smiled, as if to say, “Don’t quote me.”
When I asked him why he was carrying two handguns and an AK-47 automatic rifle, he laughed and said, “I have more than you can see, judge!”
Since then, the president has used ICE to fulfill his promise of aggressive enforcement of immigration laws while cutting constitutional corners — even to the point of arresting Americans, immigrants and aliens without arrest warrants; arresting infants, killing two Americans who posed no threat to ICE killers and then lying about it.
Government law-breaking and lying are destructive of our social fabric. We have hired a government to protect our freedoms and enforce the laws and to do so consistent with the constitutional restraints we have theoretically imposed on all government.
Does the government work for us or do we work for the government?
The U.S. Supreme Court has already ruled that even though it is a crime to lie to the government, it is not a crime for the government to lie to any person.
This dastardly judge-made rule that has no basis in history, constitutional text or morality has led to a host of false confessions and trick home invasions as federal agents have lied their way into folks’ thinking and into their living rooms.
But this lying was usually confined to unique law enforcement venues. Until now. Now, in Texas, Louisiana and Mississippi, the area of the United States subject to the U.S. Court of Appeals for the Fifth Circuit, ICE lawbreaking and lying have received a judicial blank check to search and seize wherever, whatever and whomever it wishes.
Here is the back story.
“Now, in Texas, Louisiana and Mississippi …ICE lawbreaking and lying have received a judicial blank check to search and seize wherever, whatever and whomever it wishes.”
Entering the United States illegally is a federal crime. When the government seeks to arrest a person it suspects has committed any federal crime, unless its agents have witnessed the crime being committed, the Fourth Amendment requires the government to present evidence of probable cause against the person to a federal judge and seek a warrant specifically describing the place to be searched or the persons or things to be seized.
Entering the U.S. legally and remaining here beyond the time limits imposed at the time of entry is not a crime and thus cannot be the basis for an application for an arrest warrant, as no judge would sign such a warrant.
In the Fifth Circuit, the feds no longer need an arrest warrant. A panel of two judges ruled last weekend that ICE agents can authorize each other to arrest whomever they suspect of being in the U.S. without authorization and do so without an arrest warrant or presentation of evidence.
In a case seeking the judicial resolution of two competing values — fidelity to the constitutional requirements of warrants and due process, versus aggressive enforcement of federal immigration laws — the court rejected the supremacy of the Constitution, which requires judicial warrants and a fair hearing before a neutral arbiter, and it approved ICE arrests without warrants, anywhere in the Fifth Circuit.
Houston’s Operation Triple Beam, Federal law enforcement operation, 2019. (Shane T. McCoy / US Marshals / CC BY 2.0)
There is no court ruling quite like this anywhere in the federal system, and we have seen in Minneapolis why an arrest warrant is necessary and due process is vital: Because the government cannot be trusted to comply with the Constitution, because the government makes mistakes, and because all persons are presumed innocent.
The colonists suffered grievously in 1765 at the hands of British soldiers enforcing the Stamp Act by entering homes ostensibly looking for stamps. The act was so controversial that Parliament rescinded it after a year.
But Parliament did not rescind the Writs of Assistance Act, which permitted the use of general warrants to enter onto private property and seize property and persons as the soldiers wished.
A general warrant is not based on probable cause of crime; it is based on governmental need. The Founders knew that this was a meaningless standard because whatever the government wanted, it would claim that it needed.
A general warrant did not name the places to be searched or the persons or things to be seized. Rather, it authorized the bearer to search wherever he wished and seize whatever he found. Hence the Fourth Amendment outlawed general warrants.
Operation Triple Beam law enforcement raid in St. Louis, 2019. (Shane McCoy / US Marshals / CC BY 2.0)
By authorizing the use of administrative warrants — in which one ICE agent authorizes another to search or arrest, without naming the place to be searched or the persons or things to be seized — the Fifth Circuit has subjected all persons in three American states to the tender mercies of ICE agents mimicking the British use of general warrants.
How did we get here?
We got here because of congressional indifference to constitutional norms and a judicial inclination to policy making. The judiciary is the anti-democratic branch of government.
It was not created to reflect public sentiment or establish public policy — as Congress and the presidency were — but to stand fast in protecting all persons from the popular branches.
The whole purpose of an independent judiciary is to protect moral and constitutional values.
But not in the Fifth Circuit where ICE can effectively arrest whomever it wishes, without evidence, without a judicial warrant, without knowing the name of the person arrested and without bail.
Add to this the infamous Kavanaugh stop doctrine — in which Americans approached by ICE must be prepared to demonstrate citizenship on the streets — and we see a constitutional ice age approaching.
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, was the senior judicial analyst at Fox News Channel and hosts the podcast Judging Freedom. Judge Napolitano has written seven books on the U.S. Constitution. The most recent is Suicide Pact: The Radical Expansion of Presidential Powers and the Lethal Threat to American Liberty. To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
Published by permission of the author.
COPYRIGHT 2026 ANDREW P. NAPOLITANO
DISTRIBUTED BY CREATORS.COM
The views expressed are solely those of the author and may or may not reflect those of Consortium News.
Some anti-ICE action ideas appear on the RootsAction website.
Thank you Judge.
This is a very informative and well framed article. I love the pre revolutionary comparison.
Love your YouTube channel and guests.
Keep up the great work saving democracy.
This is not just about immigration. It’s Trump’s brown shirts starting with black and brown people being kidnapped indiscriminately. I know of a case of a Cambodian woman born in a refugee camp in Thailand who was brought to this country at three months old. These people were given Green Cards, but never given full citizenship. She is here legally. She is in her 50s and has four children who are scared to death their mother will be deported to a country where she knows no one and doesn’t speak the language. This is just one of thousands of cases.
They are constructing mass detention centers all over the country. Who are those for? I would guess lefty dissidents. We need to be in the streets in the thousands to shut this fascist shit show down permanently. Democracy was always in the streets
It seems to me assembling online would be more efficient, effective – and safer.
I – always – am frustrated by authors who stash the specific identities of specific people behind the institution to which they belong and in this case that despite being “judges” they disregard the US Constitution. Isn’t the Constitution “the” bedrock foundation of the USA governance? Not providing the human identities who apparently are making “Constitution Free” decisions (despite their judicial charge to the contrary), is another little emasculation of the power/agency of the individual citizen. Is it not? Aren’t these judges appointed for life? Aren’t the appointed by the US President? If a President appoints radical right wing judges, why would those of us who care about “”justice” law” and the “Constitution” ever support a President and a majority party who’d choose and rubber stamp such judicial miscreants? Aren’t these Judges theoretically responsible to the Constitution and the US citizenry?d
Can Congress check an out of control judiciary? It seems absurd that a court can use made-up, baseless judicial fiat to subvert the citizenry’s constitutional protections against search and seizure of private property. Surely Congress (if it had a mind to, which obviously it doesn’t) could put a stop to this nonsense.
Doesn’t Congress hold constitutional authority to check an out-of-control judiciary? If citizens sue ICE and DHS for violating their 4th Amendment rights, couldn’t Congress legislatively affirm the supremacy of the Constitution? Couldn’t Congress take away the judiciary’s power to use judge-made rules to nullify an act of Congress?
I know the current Congress is disinclined to check a MAGA-corrupted judiciary, since Congress itself is deeply MAGA-corrupted. It just seems incredible to me that Congress would have no constitutional recourse to prevent a court from gutting the Constitution using judicial fiat.
Congress has the power. The opposition party just has to grow a pair and put up a fight. I think that most Americans are civil libertarians, when confronted with paramilitary thugs. It’s like Ruby Ridge everywhere.
The entire congress is corrupt, not just the MAGA types. Not a single Dem demanded that Maduro be returned and Trump be impeached for that utterly lawless action. It’s all of a piece, and the Dems, wo are good at grandstanding and misdirection, are just as much as part of the lawlessness as their Republican “colleagues.” Just wait till Trump attacks Iran; virtually every Dem, including the “progressives,” will be down with it. Until it goes south, and then they’ll start on with “demanding answers” and pretending to have always been against it.
They do – impeachment, conviction in the Senate & removal from office. It has happened exactly fly ONCE in US history.
Questions: How does the concept of a Libertarian differ from that of Neoliberal?
Is it not unconstrained “free market forces” which have brought us to the point we are now at internationally?
We should distinguish between civil libertarianism and market libertarianism. There is little difference between market libertarianism and neoliberalism, other than a difference of emphasis. Market libertarianism is a political philosophy and neoliberalism is an economic philosophy.
Civil libertarianism, on the other hand, prioritizes civil rights over financial rights. Civil libertarianism is compatible with socialism.
“We should distinguish between civil libertarianism and market libertarianism. There is little difference between market libertarianism and neoliberalism, other than a difference of emphasis.
Market libertarianism is a political philosophy and neoliberalism is an economic philosophy”.
What are the differences in the underlying bases of market libertarianism as a political philosophy and neoliberalism as an economic philosophy?
If both processes are underwritten through control of the purse strings and this amounts only to “little difference”, then I’m not buying the bridge!
Financial rights must be but one component of civil/equal rights, just as education, universal health care, and housing for all must be an intrinsic aspect of human rights, in a truly civilized society.
“Civil libertarianism, on the other hand, prioritizes civil rights over financial rights. Civil libertarianism is compatible with socialism” is an absurd claim.
What do these formulaic terms have to do with 99% of peoples actual lived experience.
Re: the notion that prices adjust based on scarcity and demand, thereby guiding resources to their most valued uses?
Question: who controls scarcity, as well as demand for resources?
Response: by way of AI Overview collated, documented details, with which I agree.
[In modern American politics, libertarians are generally not socialists; they are firm advocates of free-market capitalism, private property, and limited government, often opposing socialism’s emphasis on state intervention and wealth redistribution. However, historically and internationally, “libertarian” was synonymous with anarchist or left-wing anti-state socialism.
An anarchist is a person who advocates for the abolition of all involuntary, hierarchical government and state control (political aspect; hierarchical institutional religions not excluded), favoring a society based on voluntary association, equality, and personal freedom. They believe established authority and coercive laws are unnecessary and harmful, aiming to replace them with self-governed (the actual civil right of political oversight of) cooperative communities.]
Thanks for the polished textbook lesson in semantics.
Neoliberal means support for neoclassical economics developed by the Chicago School of Economics founded by Milton Friedman. Who advised Pinochet because “democracy interferes with Market efficiency.” It’s based on assumptions like the only human motivation is personal gain. Where devastation of communities and environments are irrelevant externalities. It’s argument by assertion; little, if any, empirical evidence. Yet now dominant. As for “free market forces,” that’s as real as corporate people. Belief in abstractions we’re told to accept by an ordained economic priesthood who speak for their de facto deity The Market as omniscient, omnipotent.
Libertarians want as little government as possible. As the superior, successful few, they don’t need it. Everyone else is either inferior or doesn’t try hard enough. Structures, societies, the common good don’t really exist; anyone appealing to such is a demagogue or trying to excuse their own personal failure. Libertarian economics comes from the Austrian School with its famous advocate F. A. Hayek whose book /The Road to Serfdom/ claims that’s what central government planning leads to.
{[Never mind the New Deal and Keynesianism worked quite well for us, the majority working class. Which is why the Chi School and Austrian types hate them so vehemently.]}
As superior, econ libertarians resent anything that doesn’t defer to them. They’re fine with the rest of us being serfs. An explanation of this in its current form is /Technofeudalism (What Killed Capitalism)/ by Yanis Varoufakis. The cloud fiefdoms of the techie rentiers have turned us into underpaid cloud proles and cloud serfs providing for free the mounds of data the techie elites capitalize on.
Yanis Varoufakis is one of the lights in the dark tunnel ahead!
Yes it is, but neoliberals have far more in common with neocons at this point. Libertarians generally are against foreign adventures, and think government should be limited, insofar as heping ordinary people (they’re for abolishing Social Security and Medicare and any kind of government-run programs and entities). However, you’re point is a good one: every goddamn last one of the members of Congress believe in the efficacy of the “free- market.” Its like a cult. And its getting a lot of people killed all over the world.