WASHINGTON — Mike Fox of the Cato Institute published an article on July 18 calling recent remarks by “border czar” Tom Homan a blatant affront to the Fourth Amendment.
Fox wrote in response to Homan’s July 11 appearance on Fox News, during which Homan claimed immigration agents could detain individuals based on physical appearance. Fox argues the Trump administration’s actions and ICE enforcement tactics violate individual privacy rights and expand government power in ways the Constitution’s framers sought to prevent.
In his article, “ICE Detentions Are an Affront to the Fourth Amendment — and We’re All Paying the Price,” Fox contends that abuses of power by the current administration have been enabled by the U.S. Supreme Court. He traces this erosion of rights back to the late 20th century, when the Court responded to backlash against pro-defendant rulings.
In Terry v. Ohio (1968), the Court lowered the standard of reasonable suspicion required for brief investigatory stops and frisks. That standard weakened further in Whren v. United States (1996), which allowed traffic stops based on minor infractions like a broken taillight, thereby legitimizing stops with dubious justifications. Fox argues this ruling paved the way for racial profiling and discriminatory policing, giving officers license to conduct fishing expeditions against minority drivers.
Fox connects those precedents to current ICE detention and border enforcement practices, particularly within the 100-mile border zone where Fourth Amendment protections are severely limited. This area encompasses roughly two-thirds of the U.S. population and includes many major cities. Within it, agents may stop individuals at fixed checkpoints without reasonable suspicion.
He recalls a 1975 decision that prohibited stopping individuals solely based on appearing to be of Mexican ancestry. But just one year later, the Court ruled that fixed checkpoints inside the 100-mile zone were constitutional even without individualized suspicion.
To illustrate the real-world impact, Fox cites the case of Earl Sampson, a Black man from Florida. Sampson, whose only criminal conviction was for marijuana possession, was stopped 258 times over five years by Miami Gardens police while working at a convenience store. Fox argues that such practices reflect a broader pattern of racially biased policing nationwide.
Federal courts have attempted to curb ICE’s authority, including Judge Maame Ewusi-Mensah Frimpong of the Central District of California, who recently issued a temporary restraining order against suspicionless immigration stops. Critics have called the order unlawful and claim it ties the hands of immigration agents. Fox rebuts that assertion, stating the order merely insists agents follow the Constitution.
Fox points out the difficulties individuals face when seeking justice for unlawful searches and seizures. While Section 1983 allows victims to sue state officials, no equivalent exists for federal agents. In Bivens v. Six Unknown Named Agents (1971), the Court recognized a limited right to sue federal officers for constitutional violations, but has since narrowed that doctrine to the point of near irrelevance.
Some justices, Fox notes, have advocated eliminating Bivens entirely. He cites two recent decisions where the Court refused to apply Bivens to Border Patrol agents, citing national security concerns and the need for officers to use excessive force without judicial oversight.
Though there have been efforts in Congress to codify Bivens into law, Fox argues these face long odds. He warns that true reform requires not only legislative success, but a judiciary willing to reject pressure from the powerful law enforcement lobby and revisit legal doctrines that have shielded federal officers from accountability.
Fox concludes by criticizing the administration’s betrayal of constitutional principles. “The framers would undoubtedly be appalled by Homan’s approach and dismayed to see self-proclaimed ‘originalists’ embrace such flagrantly unconstitutional conduct in their name,” he writes.
