Today I read an article about the “warrants” used by some members of the federal government to arrest immigrants:
https://edition.cnn.com/2026/01/21/politics/ice-memo-enter-homes-without-judges-warrant
Apparently, federal officials often do not obtain warrants from US courts, but rather have their own commanding officers write documents ordering the arrest of some immigrant or another, and then they “call” these documents warrants. “Administrative warrants” is the term of art, rather than “judicial warrants,” which are the kind one usually thinks of when hearing the term “warrant.” Immediately thinking how this is a sham way to bypass the Constitution, I looked up the text of the fourth amendment, and noticed a loophole I’d never seen before: it does not define what counts as a warrant.
It only mentions warrants in one clause: “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” That clause does not say who can “issue” a warrant. It seems obvious that the “intent” is a separation of powers – if a federal officer wants to arrest you, he should have to go to a local judge first and get his permission, not just write his own “warrant” and say that counts. Having his own boss in the immigration department write a “warrant” is in many ways just as bad as not getting one at all, and it is sad that the authors of the Constitution seem not to have foreseen this loophole.
Then I wondered, how long have these “administrative warrants” been around? And, sadly, I found out that the answer is, pretty much, “since the country started” – they’ve just gone under different names. So I made this timeline to show how US law has essentially made a mockery of the fourth amendment almost since it was passed.
1791 - the Fourth Amendment is adopted. It says, in full, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The loophole is already in place; it doesn’t define who can issue a warrant; consequently, in principle, anyone can.
1798 - the Naturalization Act of this year says, "[if any] alien...shall refuse or neglect to [report his presence]...any justice of the peace, or other civil magistrate, who has authority to require surety of the peace...[shall] cause such alien to be brought before him, there to give surety of [his] peace and good behaviour...and in failure of such surety, such alien shall and may be committed to the common [jail]." Civil magistrates were sometimes judges, but were also sometimes executive officials, as this law suggests by distinguishing “justices” from “other civil magistrate[s].” This law explicitly says that "any" of them (so long as they have authority to "require surety of the peace") could summon immigrants before them to pay a surety bond. Thus administrative officials could do that. In whatever manner these magistrates "caused" immigrants to come before them, any orders they gave to bring them in constituted a type of warrant, because they did what warrants do: order someone to be detained and potentially brought somewhere. Since such orders could, per the law, be signed (or spoken) by an administrative official rather than by a judge, they constituted administrative warrants.
1875 - the Page Act says, "Every vessel arriving in the United States may be inspected...[to ascertain if] any [forbidden] persons are on board; and the officer making such inspection shall...designat[e] in [a] certificate the person or persons, if any there be, [so] ascertained... [At] no time thereafter shall [such an] alien...be allowed to land...[unless he] shall apply...to any proper court...[and when] a hearing and determination of the matter are had...if the said inspector shall be found [in the right]...the [forbidden] person or persons shall be returned...to the country whence his or her emigration shall have taken place." This law speaks of "certificates" which force the detention of immigrants on ships unless they appeal to a court, and their deportation if the court determined them to be in the country illegally -- or if the immigrant just never asked to see a judge. These certificates were essentially administrative warrants (they did what warrants do, detain and transport someone) but were signed by administrative officials rather than a judge.
1882 - the Chinese Exclusion Act says, "any Chinese person found unlawfully within the United States shall be caused to be removed therefrom...by direction of the President of the United States...after being brought before...a court of the United States." This law explicitly calls for administrative "direction[s]" -- i.e. documents -- that order the detention of a person, their transfer to a court, and then, if found guilty, their deportation. Again, such documents were effectively administrative warrants but were signed, not by a judge, but by the President -- or, in practice, by his agents.
1891 - the Immigration Act of this year says, "inspection officers may order a temporary removal of [some] aliens [to a detention center]...until a thorough inspection is made. ...[Then those] who [arrived] unlawfully...shall, if practicable, be immediately sent back." This law codified the practice of having lower executive officers sign orders for detention and removal, as was already standard since 1875. It also controversially tried to hasten deportation procedures to reduce the amount of cases brought before courts. Orders for final removal were supposed to be executed immediately, without a judge's input, though it was still true that a detained person could *demand* to go to court. If the officials did not ignore them, a judge would see them and at least hear their grounds for appeal. Though, even in that case, some judges might have issued summary judgments in favor of deportation, without a full trial.
1917 - the Immigration Act of this year says, "any alien who...shall be found in the United States in violation of this act...shall, upon the warrant of the Secretary of Labor, be taken into custody and deported." This is the first time a *law* uses the term "warrant" for administrative orders that detained and deported people. Previous laws called such documents "certificates," "direction[s]," and "orders." Other government statements sometimes called them "Secretary's Warrants," but the law did not. This 1917 law turned the common nomenclature into a legal term as well. Since these "warrant[s]" were signed by an executive officer (the Secretary of Labor) rather than a judge, they were not judicial warrants, but administrative ones.
1952 - the Immigration and Nationality Act says, "On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States." The Attorney General is, again, an executive officer, not a judge, so these warrants, too, were administrative warrants, not judicial warrants.
1959 - the Supreme Court decides, in Abel v. United States, that "Statutes authorizing administrative arrest...[and] deportation...have the sanction of time...the [presumption of] validity [due to being] Acts of Congress...[and] uncontested historical legitimacy." It calls such documents "administrative arrest warrant[s]" and brings up the question of whether they might be inherently unconstitutional violations of the fourth amendment, since they ordered the seizure of persons without a *judicial* warrant. But the court summarily decided that such orders *were* constitutional by saying they had been in common use for a long time, that the courts must *presume* long-established laws are valid, and that neither side in the present case questioned the constitutionality of such warrants.
In modern times, such “warrants” have been questioned again. The Fourth Amendment says the government isn’t allowed to “seize” (arrest) you without a warrant. What good is this amendment if the executive branch has pretty much always been permitted to seize people and jail them *without* getting a judge’s warrant? Sure, they get an “administrative” warrant, but an administrative warrant just means the very branch of government that wants to arrest you wrote an order telling its own agents to do so. It’s a rubber stamp masquerading as a “real” warrant. And it is sad that U.S. law has essentially always used this “administrative warrant” trick (under a variety of names) to bypass the fourth amendment, and even the Supreme Court has affirmed that it’s fine, mostly because it’s always been done that way. I wish I could say “the Founding Fathers would be rolling in their graves” – but based on the first two entries in my timeline, it looks like they used this trick too. The hypocrisy runs deep with this one.
