Meg Mary Margaret Penrose (Texas A&M University School of Law) has posted Administrative Arrest Warrants: Armed Encounters Outside the Judicial Process (Cornell Journal of Law and Public Policy, Vol. 33, No. 3, pp. 389-435, 2024) on SSRN. Here is the abstract:
This Article considers three related questions. First, is a person “seized” under the Fourth Amendment when law enforcement restricts a person’s movements in their home and limits their ability to leave or go about their business? Second, does the answer to this seizure inquiry turn on the person’s citizenship status? And third, how do lawyers ensure that courts discard bad law? This last question is not a qualitative assessment— with good and bad law being tied to one’s legal ideology. Rather, certain legal holdings, dating back over half a century, have been whittled away if not entirely eroded. When this happens, how do lawyers ensure that judges do not rely on outdated law that has not been directly overruled? Worse still, how do lawyers ensure that judges avoid dicta from such cases when the entire case should be jettisoned for being at odds with current legal doctrine?
This Article proceeds in four parts. Part I restates the opening hypothetical by explaining how ICE officers are legally permitted to issue, without judicial oversight, administrative arrest warrants. This statutory authority should, nonetheless, be evaluated using Fourth Amendment doctrine that limits exceptions to judicial warrants when law enforcement acts in, or just outside, the home. Part II introduces Abel v. United States to explain how arrests for alleged immigration violations could occur prior to Katz. Part III provides an overview of how modern Fourth Amendment doctrine has eroded Abel and justifies its outright reversal. Part IV concludes by asserting that all law enforcement officers, including ICE, should be bound by traditional Fourth Amendment doctrine when conducting seizures in, or just outside, the home. The Fourth Amendment protects all people, not just citizens. And its text should be given the full effect the Framers drafted and intended. For this reason, the Supreme Court should take an opportunity to explicitly overrule Abel.
Recommended.
