Introduction
After a series of public losses in its war on “sanctuary” cities, the first Trump Administration deployed the immigration subpoena, a new and formidable weapon in this fight.
It used these agency-issued subpoenas to retaliate against its political foes—cities and states that refused to participate in federal immigration enforcement—and demand they do what the federal government could not otherwise compel: provide confidential information that would allow ICE to arrest, prosecute, and deport their constituents.
Unlike President Donald Trump’s prior efforts, this tactic proved effective. Of course, some cities initially resisted,
but once the spotlight faded, that defiance was short-lived. Challenging these subpoenas, the cities seemed to conclude, was futile. And they stood down, quietly turning over the very information they had promised to protect.
Though brief, this battle had enormous implications. For the immigrants caught in the crossfire, it meant exposure to some of the harshest penalties in our legal system: arrest, detention, and exile from their families and homes.
For cities and states, it exposed a major chink in the armor of local sovereignty, one that could undermine subfederal policy on policing, privacy, and control of local resources.
And, for the effort to disentangle local government from immigration enforcement, it landed a trenchant blow. It showed how these subpoenas could jeopardize one of the most powerful immigrant-protective movements of the twenty-first century
: the sanctuary policies that prevent state and local actors from providing confidential information and other resources to facilitate federal immigration enforcement.
In other words, the immigration subpoena offensive worked as intended—and ICE suggested that this was only the beginning and that it might start using this tactic “much more broadly.”
But has it? And how else does ICE use these administrative subpoenas—issued without judicial sign-off, active litigation, or even probable cause—to demand that recipients provide confidential records, testify against others, or present themselves for interrogation? The problem—perhaps the biggest takeaway from this episode—is that no one knows. In short, this episode revealed major, unanswered questions about when, how, and with what constraints the massive immigration enforcement agency uses its subpoena power more broadly.
These questions are particularly pronounced because the immigration subpoena regime has long operated in darkness.
Although the immigration subpoena power is over a century old,
information about when and how the government uses it is virtually nonexistent in the public domain.
Unlike the typical subpoena issued by a federal court,
these “investigative” subpoenas issued by ICE are not part of public, ongoing legal proceedings, nor are they formally connected to any filed charge or complaint. And, since ICE may issue these subpoenas to obtain information about almost any matter related to the immigration domain without a reason to even suspect that a legal violation has occurred,
these subpoenas may never make it into any public record or onto any litigant’s radar.
Perhaps for these reasons, immigration subpoenas have largely escaped both the legal battles raging over other ICE tactics and the scrutiny of scholars, reporters, and courts. To be sure, scholars such as Professors Medha D. Makhlouf and Bridget Fahey have published important work identifying some of the concerns that ICE’s subpoenas and other information-gathering tools could raise.
But no scholar has examined the immigration subpoena regime as a whole or how the agency wields this power on the ground. Indeed, the government itself lacks the fundamental information necessary to study this regime because ICE has no functional system for even tracking—much less analyzing—subpoenas’ use in the immigration realm.
Thus, despite in-depth examinations of other aspects of immigration enforcement
and administrative subpoenas in other contexts,
the immigration subpoena regime remains unstudied, largely unchallenged, and, for many, entirely unknown.
The need to understand this regime has never been greater. While local governments have long played an important role in federal immigration enforcement in the nation’s interior,
the increased resistance to state and municipal collaboration has changed the enforcement landscape.
Specifically, because so many local law enforcement agencies now refuse to arrest and detain for immigration purposes, ICE relies even more heavily on information gathered, generated, and retained by local governments.
As the federal fury over sanctuary cities’ refusal to provide this information shows, the interior immigration enforcement regime depends on this information at every stage, from identifying potential targets to executing arrests to effecting deportations.
While ICE has publicly focused on obtaining this information from police, jailors, and probation departments,
its reach into local interactions does not end there. Because immigration arrests and prosecutions can implicate virtually every aspect of people’s lives—including spouses’ employment, children’s schooling, and medical care—so too can ICE’s investigative powers.
In this way, these investigations can extend beyond the individuals under investigation to anyone—including U.S. citizens—with whom they associate.
Thus, knowing how ICE uses its subpoena power to obtain this information is critical to understanding the extent to which local entities remain complicit in immigration enforcement, the practical and legal implications of the immigration subpoena regime, and the efficacy of constraints on this power in the civil immigration realm.
This Article begins to answer these questions, providing the first comprehensive account of the immigration subpoena power. Drawing on previously undisclosed agency records reflecting thousands of subpoenas used in investigations nationwide,
it shows how the agency wields a power initially created to facilitate racial exclusion at the border to reach deep into some of the most intimate areas of people’s lives, including schools, social services agencies, and other historically protected domains.
Indeed, it shows that the agency has long used these subpoenas to obtain children’s records from schools, compel sensitive records from local agencies, surveil people’s movements, and more.
This Article also reveals the significant federalism implications of ICE’s subpoena practice. It demonstrates that, contrary to the agency’s own representations,
ICE regularly used these subpoenas to compel state and local law enforcement to participate in federal immigration enforcement well before Trump and has continued doing so to the present day.
But it also shows that ICE’s practice of subpoenaing states and localities that refuse to participate in federal immigration enforcement has recently transformed and become embedded in ICE policy, creating a formal structure for waging an intersovereign subpoena battle that rages on, largely in secret, today.
This Article not only shows where the agency uses this power but also provides troubling new insight into how. It reveals that the agency has sought to broaden its subpoena power to make prospective demands for information and real-time surveillance, attempted to foist investigatory functions upon subfederal government entities, and tried to obscure its subpoena practices by imposing all-encompassing, indefinite—and unlawful—gag orders upon subpoena recipients.
Ultimately, this study paints a troubling picture of how ICE uses this power to force subfederal governments and others to contribute to immigration arrests and detention.
In addition to this descriptive contribution, this Article makes two important analytical claims. First, it argues that this examination exposes patterns of unauthorized and unconstitutional conduct that permeate the immigration subpoena regime.
It shows how ICE’s use of immigration subpoenas implicates a host of constitutional questions—related to federalism, privacy, and free speech—that have gone unanswered and, in some respects, entirely unexplored. And it contends that this study helps raise and even resolve some of these questions by demonstrating the ways that ICE’s practices impinge on core constitutional rights and constraints. These findings are important not only to identify these issues but also because they open three paths to agency restraint: They give rise to viable legal challenges in an area where judicial review is notoriously weak;
raise troubling policy questions that, in other contexts, have prompted subregulatory self-constraint;
and arm the public with information necessary to exert pressure through other means.
Second, this Article argues that understanding how the immigration subpoena power is implemented has doctrinal and normative implications that transcend the immigration field.
As the first scholarship to date that examines a large set of primary administrative subpoena records—agency-level subpoenas and data
—it offers new insights that apply to administrative subpoena use and investigations more broadly. Specifically, it argues that this ground-level view of agency practice suggests the need to rethink the presumption of administrative regularity and the application of internal administrative law principles in at least some similar contexts. These insights are especially important in considering enforcement regimes that, like ICE’s, impose extraordinarily harsh penalties and bear most heavily on historically marginalized populations who often lack resources and political power. Ultimately, this Article makes the case for greater external constraints and more probing judicial review in the immigration subpoena regime and beyond.
The Article proceeds in four parts. Part I explores why the immigration subpoena power was created and what that power looks like today. It traces the history of the immigration subpoena from its origins as a mechanism for racial exclusion to the broad, uncanalized power of compulsory information-sharing and surveillance it has become. And it shows why, despite the general acceptance of administrative subpoenas in other regimes, the immigration subpoena power raises distinct and urgent questions—ones that demand a closer look at how it functions in practice. Part II illuminates the current immigration subpoena regime. It uses new agency data and records obtained under the Freedom of Information Act to show how ICE uses this authority in the nation’s interior. Ultimately, it provides a first-of-its-kind view of how this tool is used in practice and of the unlawful conduct that permeates the immigration subpoena regime. Part III explores the constitutional and doctrinal implications. It argues that the findings in this Article raise a number of serious constitutional questions, help resolve some of those questions, and justify important doctrinal and procedural changes. Part IV argues that these findings offer valuable lessons about administrative subpoena doctrine and practice that transcend the immigration regime.