Most Americans had probably never heard of Rep. Mark Harris, R-N.C., before this week. Harris is relatively new to national politics, having been elected to the House in 2024. Plus, let’s be honest, a lot of Americans haven’t heard of their own legislators, much less someone else’s.
But then Harris appeared on Newsmax on Tuesday morning, discussing what he and his caucus viewed as unacceptable reforms to Immigration and Customs Enforcement.
“You know, some of these things are non-starters,” Harris said. “Having judicial warrants? To me, that’s a non-starter. Being able to make them take off their mask, putting them at risk? That’s a non-starter.” Such changes, he said, would “hamstring” the agency.
The Fourth Amendment to the Constitution protects against unreasonable seizure, mandating that there exists probable cause a crime was committed before a warrant is issued.
There is no documented case of an ICE agent being identified and attacked after not wearing a mask, but that’s not why Harris’ comments spread quickly across social media. It was the first part, Harris’ assertion that forcing federal law enforcement to obtain warrants from a judge before effecting an arrest, that generated the most attention.
After all, this is how law enforcement generally works. The Fourth Amendment to the Constitution protects against unreasonable seizure, mandating that there exists probable cause a crime was committed before a warrant is issued. To suggest that this is somehow burdensome not only runs contrary to more than 200 years of history, but it also suggests that ICE has more urgent demands than, say, police trying to apprehend a murderer.
Speaking to NBC News’ Kristen Welker on Sunday, House Speaker Mike Johnson, R-La., insisted that ICE was already operating with warrants.
“Remember,” he said, “the immigration judges have already issued warrants. And that’s with that [sic] ICE officials are acting upon.”
Speaking to reporters on Tuesday, he repeated the claim: “When ICE goes to execute a warrant, it’s an administrative warrant and it’s issued by an immigration judge, and that is a sufficient legal authority to go and apprehend someone.”
This is false. As Hannah James, counsel in the Brennan Center for Justice’s Liberty and National Security Program, explained at Just Security, being in the country without documentation is a civil offense, not a criminal one.
“The administrative warrants issued by ICE differ from traditional criminal arrest warrants not only because they are not based on criminal activity but also because they are not issued by a judge,” James wrote. “Rather, they are approved by certain supervisory immigration officers.”
The argument from Johnson is functionally equivalent to saying that an IRS agent should be able to obtain a warrant from his supervisor to arrest someone for paying too little in taxes.
Mike Johnson, it’s important to note, is a constitutional lawyer by training. One would assume that, at some point in his career, he became familiar with the Bill of Rights. But he is currently a politician, not a lawyer, and in the era of President Donald Trump, it seemingly behooves a Republican politician to echo the legal interpretations offered by the chief executive rather than ones from people who understand the law.
Harris, by contrast, is a pastor. He has only been a politician during the era when Trump was the leader of the Republican Party – which isn’t to excuse his ignorance, but it does explain it: Shrugging at constitutional requirements is how Republican politics has worked as long as Harris has been in Republican politics.
This is true of a lot of Johnson and Harris’ peers, too. Fully two-thirds of Republicans in the House only arrived on Capitol Hill after Trump won the 2016 presidential election. Their tenure in national politics has been entirely in the shadow of Trump’s approach to it.
This is a significant reason why Congress has been so pliant during Trump’s second term. In theory, it exists as a check on presidential power. In the past, legislators and House speakers have been forceful in exercising that check, understanding that they had power of their own that was worth protecting from presidential encroachment. This overlaps with the warrant issue, too: You can see potential problems with the executive branch approving warrants for the executive branch.
The reason for these warrants, after all, isn’t simply to introduce a roadblock to law enforcement. It’s to ensure that the power of law enforcement isn’t abused. Democratic legislators are demanding that ICE stop conducting searches without judicial warrants specifically because ICE has been abusing the process! If individuals who should be detained aren’t because a step has been added to prevent the detention of people who shouldn’t be, that is a feature, not a flaw of the system.
It’s one that Americans support. Recent polling from YouGov asked Americans whether it was worse that a guilty person not be found guilty of a crime or that an innocent person be found guilty of one. Overwhelmingly, Americans said that the innocent person being punished was worse. More than three-quarters of Democrats and Republicans alike held that position.
In fact, when YouGov asked subsequent questions seeing how far this preference would go — was it worse if two guilty people went free? Ten? — they found that support for protecting the innocent extended much further than ensuring that the guilty were brought to justice. Just about half of respondents said that it was better to let 10 guilty people go free than to punish one innocent person. Only 6% of respondents thought it was better to let 10 innocent people be punished as long as one guilty person didn’t go free.
Here, too, there wasn’t a big divide by party. Fully 48% of Republicans preferred letting 10 guilty individuals go free over punishing one innocent person.
That said, Republicans do generally agree with what ICE is doing. Protections in the abstract are less powerful than punishments in practice, it seems. So while more than half of Americans think ICE is being too forceful in its actions, most Republicans think ICE is doing things about right — or perhaps not being forceful enough.
It’s likely that this, too, is a function of the country sitting in Trump’s broad shadow. Republicans agree with what ICE is doing because it is what ICE is doing. Were ICE conducting raids in red states under the authority of Joe Biden, it is extremely safe to assume that Republican concern would be far higher — and that Johnson and Harris would be among the first to insist that they needed to comply with balance-of-power constraints on their behavior.
This remains the great irony of Trump’s politics. He claims to be making America great again — he gave Johnson a ballcap reading “America is back!” during an Oval Office meeting this week — but he’s pulling his party and its base away from what America has long been.
