Administrative Law Provides Better Path to Challenge ICE Abuses Than Constitutional Claims
Source: Priyanka Menon. "ICE Might Be Violating America’s Other Bill of Rights - The Atlantic." March 26, 2026. www.theatlantic.com
The Gist
Instead of suing ICE for violating people's constitutional rights (which courts often dismiss), lawyers should sue them for breaking their own internal rules. This approach has been more successful at actually stopping deportations and holding immigration agents accountable.
Conclusion
Legal advocates should use the Administrative Procedure Act (APA) rather than Fourth Amendment claims to more effectively challenge ICE and CBP abuses of power
Premises
- Supreme Court decisions have weakened Fourth Amendment protections against ICE and CBP, allowing illegally gathered evidence in deportation proceedings and shielding agents from excessive force lawsuits
- The Administrative Procedure Act requires federal agencies like DHS to follow their own rules and procedures, providing courts authority to review potentially unlawful agency actions
- Recent Supreme Court decisions have expanded judicial oversight of federal agencies, making courts less deferential to agency interpretations and more willing to constrain agency behavior
- The Sanchez v. Sessions case demonstrates APA's effectiveness - the Ninth Circuit stopped a deportation because Coast Guard violated its own racial profiling rules, requiring the agency to start over
- DHS regulations mirror Fourth Amendment protections (requiring reasonable suspicion, limiting use of force), so APA challenges can address the same abuses while avoiding constitutional law obstacles
- APA challenges focus on agency decision-making processes rather than constitutional violations, which courts are more willing to remedy with meaningful relief like halting deportations
Assumptions
- Courts are more willing to enforce administrative law violations than constitutional violations in immigration contexts
- Slowing down immigration proceedings provides meaningful protection for immigrants and families
- ICE and CBP agents are primarily administrative officials subject to bureaucratic oversight rather than law enforcement officers with broader discretion
- The current Supreme Court's anti-agency stance will be applied consistently to immigration enforcement agencies