#thefourthamendment

Stephen Miller says requiring ICE to follow the Constitution is a “non-starter.”

February 11, 2026

Robert B. Hubbell

Note to reluctant readers and those avoiding the news: There are several significant, positive developments discussed in today’s edition. Here is the takeaway: The guardrails of democracy are rebounding, showing resilience in the face of lawless actions by a wannabe dictator. We have reason to be hopeful, but no reason to be complacent. Read on!

Stephen Miller says requiring ICE to follow the Constitution is a “non-starter.”

The requirement of a judicial warrant based on probable cause to enter a person’s home is a touchstone of the Bill of Rights. Indeed, according to John Adams, the British practice of issuing “general writs” authorizing unbounded searches of homes led to the “first Act of opposition” in the Revolution. As historians have noted, the colonists’ hatred of “general warrants . . . led ultimately to the prohibition against unreasonable searches and seizures in the Fourth Amendment to the United States Constitution.” See Commentary in Adams Papers Digital Edition - Massachusetts Historical Society.

The Fourth Amendment states,

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.

On Tuesday, Stephen Miller rejected as a “non-starter” a demand by Democrats that ICE obtain judicial warrants based “upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized” before entering a home. See Politico, ‘Complete nonstarter’: Administration allies say judicial warrants a red line for White House in DHS funding talks as shutdown looms. (“The judicial warrants are the key operational thing that [deputy chief of staff] Stephen Miller and the crew do not want to budge on.”)

Got that? Complying with the Constitution’s foundational procedural protection is a “non-starter.” More importantly, it is an admission that the current practice of ICE of entering homes without a judicial warrant violates the Constitution.

Democrats must stand firm on this point. Demanding that ICE comply with a protection that was present at the birth of our republic should be “non-negotiable.” If complying with the Constitution is an intolerable burden for ICE, it must be abolished and replaced with an agency that views the Constitution as its charter, not an obstacle.

This point, standing alone, justifies the steadfast refusal to fund DHS until ICE agrees to follow the Constitution. To do otherwise would amount to amending the Constitution by fiat. In that sense, the fight over funding DHS is a defense of the Constitution, as to which there can be no compromise

So, too, the requirement that ICE agents drop their masks and conform to police practices nationwide. Republicans have promoted the myth that masks are necessary to protect ICE agents from “doxxing.”

To date, masks have served only two purposes:

First, masks have terrorized and confused law-abiding citizens; see, e.g., the doorbell video of Nancy Guthrie’s abductor, whose masked visage is indistinguishable from ICE agents pounding on doors in the middle of the night. Indeed, in an early decision challenging ICE’s tactics, US District Court Judge William Young wrote, “ICE goes masked for a single reason -- to terrorize Americans into quiescence.”

Second, masks have insulated violent ICE agents from accountability for their crimes, including the killing of innocent citizens. Similar practices by the British crown were at the heart of the grievances listed in the Declaration of Independence. (“For protecting them . . . from punishment for any Murders which they should commit on the Inhabitants of these States. [¶] [The King] has constrained our fellow Citizens . . . to become the executioners of their friends and Brethren . . . .” )

Critically, the Republican claim that ICE agents have been “doxed” is a myth. As explained by Josh Marshall in Talking Points Memo, What Are the Masks for Exactly?,

[J]ournalist Philip Bump was able to determine that “doxxing,” the notional rationale for ICE masking, has in fact never happened. Not once. It’s important to note what definition we’re using here. As Bump puts it, “At no point in time has an officer been seen conducting his work, identified and subsequently attacked. While there have been threats issued against agents and incidents of off-duty harassment, there are no known incidents in which an officer was assaulted while off-duty because he was identified as a federal agent.” In other words, someone may have posted someone’s address on X or some website. But nothing happened.

So, “doxxing” of ICE agents is an exaggerated threat, close to being non-existent. And sharing publicly available information is not “doxxing.” Trump has shared publicly available information about his opponents. See, e.g., CNN, (7/22/15), Donald Trump gave Lindsey Graham’s cell number to U.S.

Moreover, the phone numbers, office addresses, and emails of every member of Congress are publicly available. Disseminating that information is not “doxxing.” Nor is sharing the identities of ICE agents filmed committing violent acts against protesters, innocent citizens, and immigrants who may (or may not) be subject to deportation. In normal times, capturing such video is known as “evidence” in a criminal proceeding. Now, Republicans claim that is “doxxing.”

Defending the Constitution’s probable cause requirement for a judicial warrant to search a home and demanding the unmasking of ICE agents should be “non-negotiable” items in the upcoming showdown.

A federal grand jury refuses to indict senators and representatives who advised service members of their duty to refuse illegal orders.

Those seeking to resist Trump’s authoritarian agenda should take heart from the actions of a federal grand jury in Washington, D.C. Its refusal to indict the senators and representatives who recorded and published a video advising service members of their duty to disobey illegal orders should give us all renewed confidence that the guardrails of democracy will hold.

Recall that Senators Kelly and Slotkin, and Reps. Crow, Houlahan, Deluzio, and Goodlander recorded and released a video advising members of the US military of their obligation to refuse to follow illegal orders. The statements made by the senators and representatives accurately summarize the law set forth in the Uniform Code of Military Justice and international treaties that comprise the “law of war.”

Indeed, Secretary of Defense Pete Hegseth and Attorney General Pam Bondi have made similar arguments before they surrendered their consciences and backbones to Trump. See Newsweek (12/03/25), Video of Hegseth telling military not to follow “illegal orders” resurfaces (Hegseth said in 2016, “That’s why the military said it won’t follow unlawful orders from their commander in chief.”), and The New Republic, (12/08/25), Pam Bondi Made the Same Statement Trump Claims Is Sedition. (Bondi wrote, “Military officers are required not to carry out unlawful orders.”)

The duty to disobey an illegal order, as recited by Kelly, Slotkin, Hegseth, and Bondi, is recognized in federal jurisprudence interpreting the UCMJ. For example, in the prosecution of Lieutenant William Calley for the My Lai massacre, the court ruled that a soldier who obeys an order “which a man of ordinary sense and understanding would, under the circumstances, know to be unlawful” can be convicted for following that order. Indeed, the court rejected Calley’s defense of “I was following orders” and convicted him of murdering 22 infants, children, women, and elderly men in the village of My Lai in March 1968. See Just Security (2016), A Duty to Disobey?

It therefore shocks the conscience that US Attorney Jeanine Pirro asked a federal grand jury to indict the two senators and four representatives for “interference with military morale and discipline” for their statements in the video.

Prosecutors may seek indictments only when they have a good-faith belief that the evidence is sufficient to sustain a conviction. See, e.g., Justice Manual § 9-27.220 (“[N]o prosecution should be initiated against any person unless the attorney for the government believes that the admissible evidence is sufficient to obtain and sustain a guilty verdict by an unbiased trier of fact . . . .”) Seeking an indictment to inflict political retribution is an abuse of process that the relevant licensing authorities should examine when considering the fitness of Pirro and her staffers to continue to practice law.

The mere fact that a grand jury refuses to return an indictment is not grounds for discipline or disbarment. But the public statements by Trump targeting the senators and representatives create a strong inference that the requests to indict were selective or vindictive prosecutions undertaken to please Trump.

Prosecutors who engage in such unprofessional conduct should be subject to discipline and, if appropriate, disbarment. Indeed, legal advocacy groups have begun to file complaints against current DOJ lawyers who fail to abide by ethical requirements in their representation of the government. See Reuters, US DOJ lawyer hit with bar complaint over search of reporter’s home.

The historic nature of the requested indictments makes a strong case for disbarment. Indicting sitting members of Congress, who have oversight of the military, for making statements that correctly summarize the law regarding the duty to refuse illegal orders tears at our constitutional fabric and should be condemned by every lawmaker and American who cares about the rule of law.

But in the end, the real story is that ordinary citizens serving on a grand jury served as a guardrail of democracy. In that simple but powerful fact, each of us should rest just a bit easier tonight.

Speaker Mike Johnson fails to pass legislation protecting Trump’s illegal tariffs.

In another sign of life in the guardrails of democracy, the GOP-controlled House failed to pass legislation that would have restricted its ability to challenge Trump’s illegal tariffs. See Politico, GOP revolt sinks effort to block votes on Trump’s tariffs.

Per Politico,

Three Republican lawmakers, Thomas Massie of Kentucky, Kevin Kiley of California and Don Bacon of Nebraska, joined Democrats to defeat a key procedural measure 217-214. That gives Democrats the opportunity to force a vote as soon as this week on a resolution disapproving of the president’s 25 percent duties on Canadian goods.

While it might be generous to describe the crossover by three Republicans as a “revolt,” other GOP members likely voted with Trump and Johnson because they knew the measure would fail.

Interesting point: Kevin Kiley of California is one of the Republicans targeted by the mid-decade redistricting in California. Kiley opposed efforts by California and Texas to engage in partisan gerrymandering, believing he would become a target of the tactic in California. Now that Kiley is running a very competitive district, he has found the courage to stand up to Trump. (Don Bacon also represents a competitive district in Nebraska and frequently breaks with Trump.) Funny how representing a competitive district gives Republicans the backbone to stand up to Trump.

The Supreme Court should rule any day now on the challenge to the legality of Trump’s global reciprocal tariffs under the International Emergency Economic Powers Act. Legal observers believe that the Supreme Court will rule against Trump, but we should prepare for any outcome. In the meantime, the House can continue to review Trump’s declarations of economic emergencies after the failure of Speaker Johnson’s maneuver.

Concluding Thoughts

Each of the stories in today’s edition shows that Trump is struggling to defend his unlawful regime. Drawing a “red line” over compliance with the Constitution is a sign of weakness, not strength. The actions of the federal grand jury in rejecting the indictments against the senators and representatives highlight the important firewall function that citizens serving as gatekeepers to criminal courts provide. And the fact that Mike Johnson has (again) lost control of the GOP caucus in the House says more about Trump than it does about the Speaker.

Various revelations in the Epstein child-rape and sex trafficking scandal today also continue to damage Trump. Key parts of Trump’s fictitious narrative about Epstein have been debunked by the documents. And the stunning revelations that contradict Howard Lutnick’s previous claims that he met Epstein on a single occasion show the value of documents in testing facile denials by men who believe they can lie and get away with it.

All of this adds to our momentum. While I frequently say that the daily news shows that we are winning, I will give the final word to Rebecca Solnit, who writes the essential Meditations in an Emergency. Her essay today is titled, Auspicious Omens and Excellent Insubordination. It is a truly prodigious work that chronicles the many ways that we are defeating the Trump regime. It is long, but worth every word.

If you don’t have the time to read everything Solnit writes, here is the gist:

The most essential thing about the Trump Administration right now is that it is weak, chaotic, and wildly unpopular and doing everything it can to make itself more so. Unfortunately, it’s taking the nation and to some extent the world with it, but if you want to see the administration as the drunk driver, more and more people are getting out of the car, or trying to turn it around (and take the keys away).

In ways large and small, we are successfully bending the arc. It is hard work and emotionally taxing. But our persistence is paying off. Stay the course, my friends! We are on the right path.

The Fourth AmendmentHistorical Context and Origins Core Principles of the Fourth Amendment 1. Protection Against Unreasonable Searches and Seizures 2. Requirement for Warrants 3. Probable Cause Interrelation of the Principles Judicial Interpretations and Key Cases Contemporary Challenges 1. The "Good Faith" Exception 2. Plain View Doctrine 3. Searches with Consent 4. Exigent Circumstances 5. Stop and Frisk (Terry Stops) 6. Search Incident to Lawful Arrest 7. Probation or Parole Status 8. Abandoned Property 9. Border Searches 10. Private Searches 11. Technology and Public Spaces 12. Limited Expectation of Privacy The Fourth Amendment The Fourth Amendment to the United States Constitution, part of the Bill of Rights ratified in 1791, represents a cornerstone of individual liberty and privacy in American jurisprudence. Its text, though brief, encapsulates profound principles that safeguard citizens from arbitrary government intrusion: "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." This essay will explore the origins, interpretations, and contemporary challenges of the Fourth Amendment, highlighting its enduring relevance in an era of rapid technological advancement.

Historical Context and Origins The Fourth Amendment was born out of the Founding Fathers’ desire to prevent abuses witnessed under British rule. Colonial America experienced widespread discontent over practices such as the issuance of "writs of assistance," which were broad, general warrants allowing officials to search homes and seize property without specific cause. These grievances were vividly expressed by figures like James Otis, who described such writs as tools of tyranny. The framers of the Constitution sought to enshrine protections that would prevent such overreach. The Fourth Amendment thus reflects Enlightenment ideals of individual autonomy and limited government, aiming to balance public order with personal freedom. Core Principles of the Fourth Amendment The Fourth Amendment's protections stem from its three foundational principles: protection against unreasonable searches and seizures, the requirement for warrants, and the necessity of probable cause. These principles work in concert to safeguard individuals' privacy and liberty while allowing the government to maintain law and order in a constitutionally limited manner. 1. Protection Against Unreasonable Searches and Seizures The Fourth Amendment explicitly protects individuals from "unreasonable searches and seizures," marking a clear boundary between private life and government authority. This principle is rooted in the notion that privacy is a fundamental human right, essential for individual dignity and autonomy. The term unreasonable serves as a pivotal standard, requiring courts to evaluate the context of each case to determine whether a search or seizure was justified. Factors such as the individual's expectation of privacy, the methods employed by law enforcement, and the nature of the investigation are assessed to ensure that government actions are proportionate and not arbitrary. For example: - In Katz v. United States (1967), the Supreme Court ruled that placing a listening device on a public phone booth without a warrant violated the Fourth Amendment. The decision established that "the Fourth Amendment protects people, not places," extending its reach to activities where individuals have a reasonable expectation of privacy. - Conversely, searches in contexts where individuals do not have a reasonable expectation of privacy, such as abandoned property or items in plain view, are generally deemed lawful without a warrant. The prohibition against unreasonable actions serves as a shield against abuses of power, ensuring that individuals can live without constant fear of government intrusion into their personal spaces, thoughts, and communications. 2. Requirement for Warrants The warrant requirement is one of the most stringent procedural safeguards embedded in the Fourth Amendment. It ensures that searches and seizures are subject to judicial oversight rather than the unilateral discretion of law enforcement officials. To obtain a warrant, law enforcement must: - Present evidence of probable cause to a neutral and detached magistrate or judge. - Specify the location to be searched and the items or individuals to be seized. This process ensures: - Judicial Neutrality: A judge acts as an independent arbiter, evaluating the necessity and scope of the proposed search. - Particularity: Warrants must detail the scope of the search, preventing broad or exploratory investigations that might lead to abuses. The warrant requirement prevents "general warrants," a practice common under British colonial rule, where officials could search indiscriminately without justification. The Founding Fathers viewed this as a grave violation of liberty and sought to eliminate it through the Fourth Amendment. However, there are exceptions to the warrant requirement, including: - Exigent Circumstances: When there is an imminent threat to public safety or evidence may be destroyed, law enforcement may act without a warrant. - Consent Searches: If an individual voluntarily consents to a search, no warrant is required. - Searches Incident to Arrest: Law enforcement can search an arrestee and the immediate area to ensure officer safety or prevent evidence tampering. While these exceptions provide flexibility, they also raise concerns about potential overreach. Courts continuously evaluate and refine the scope of warrantless searches to maintain a balance between practicality and constitutional protections. 3. Probable Cause The concept of probable cause underpins the issuance of warrants, acting as a substantive safeguard against arbitrary government action. Probable cause requires law enforcement to provide credible evidence suggesting that a crime has been committed and that the search or seizure will yield relevant evidence. This principle establishes a high threshold for government intrusion, ensuring that searches are based on concrete facts rather than mere suspicion. The requirement is designed to prevent "fishing expeditions," where law enforcement might conduct broad searches in the hope of uncovering wrongdoing. The process of establishing probable cause includes: - Submission of Evidence: Law enforcement must present affidavits or other documentation detailing their reasons for requesting a warrant. - Oath or Affirmation: Officials must swear to the truth of their assertions, ensuring accountability and deterring false claims. - Judicial Scrutiny: A magistrate evaluates the evidence to determine whether the standard of probable cause has been met. Probable cause strikes a delicate balance: - It empowers law enforcement to act decisively when evidence supports their actions. - It protects individuals from unjustified intrusions based on whim or bias. In Illinois v. Gates (1983), the Supreme Court adopted a "totality of the circumstances" approach to assessing probable cause. This flexible standard allows judges to consider all relevant factors rather than rigidly adhering to specific criteria, ensuring that justice adapts to complex realities. Interrelation of the Principles The three principles of the Fourth Amendment—protection against unreasonable searches and seizures, the requirement for warrants, and probable cause—are deeply interconnected. Together, they form a cohesive framework that: - Ensures government accountability. - Protects individual privacy and liberty. - Allows law enforcement to perform its duties within constitutionally prescribed limits. By demanding that searches and seizures be reasonable, authorized by warrants, and supported by probable cause, the Fourth Amendment prevents unchecked governmental power while fostering trust in the legal system. These protections remain as vital today as they were at the time of the Founding, continually evolving to address new challenges in the digital age. Judicial Interpretations and Key Cases Over the centuries, the judiciary has played a crucial role in interpreting the Fourth Amendment, adapting its principles to evolving societal and technological contexts. Some landmark cases illustrate its application: - Katz v. United States (1967): This case expanded the Fourth Amendment's scope to include protections for privacy, establishing the "reasonable expectation of privacy" test. Katz clarified that the Amendment applies not only to physical spaces but also to intangible realms, such as telephone conversations. - Terry v. Ohio (1968): The Supreme Court upheld the constitutionality of "stop and frisk" procedures under specific circumstances, allowing police to conduct searches without warrants if there is reasonable suspicion of criminal activity. This case highlighted the tension between public safety and individual rights. - Carpenter v. United States (2018): In this modern case, the Court ruled that accessing historical cellphone location data constitutes a search under the Fourth Amendment, requiring a warrant. It underscored the challenges posed by digital technologies to traditional notions of privacy. Contemporary Challenges The Fourth Amendment faces unprecedented challenges in the digital age, where technology has redefined privacy and surveillance. Smartphones, biometric data, cloud storage, and internet activity generate vast amounts of personal information that governments and private entities can access. Questions arise regarding the scope of the Amendment in regulating data collection, facial recognition, and mass surveillance programs. Moreover, national security concerns have often clashed with Fourth Amendment protections. Programs like the National Security Agency's bulk data collection, revealed by Edward Snowden, sparked debates about the balance between security and privacy. The courts and legislatures continue to grapple with these issues, seeking to modernize legal frameworks without undermining constitutional principles.

Limitations of the Fourth Amendment's Applicability