Appeals Court Upholds Block Of ICE’s BS ‘Seven Day Notice’ Detention Center Inspection Policy

from the must-be-hiding-something dept

Something that never was a problem for years suddenly became a thing after Trump’s return to office. As his administration ramped up its cruelty towards non-white people, Democratic leaders suddenly became much more interested in seeing how ICE was handling this influx of detainees.

Not that they were wrong to do so. The history of ICE detention is extremely ugly, with detainees regularly treated like the subhumans ICE (and their subcontractors) seem to believe these human beings are. But with ICE and the DHS making all the wrong kinds of headlines as the administration carried out its racial cleansing programs, DHS started to pretend congressional members were no longer allowed to perform inspections of ICE detention facilities.

In some cases, this refusal to comply with the law resulted in the arrest of politicians trying to engage in their legally ordained oversight duties. When that intimidation failed to stem the flow of congressional reps to ICE facilities, DHS started issuing its own limitations on inspections — exactly zero of which were supported by current law.

Kristi Noem issued “guidance” last year pretending that Trump’s budget bill freed ICE from having to open their facilities to congressional inspection. Noem’s theory was that while normally DHS couldn’t make congressional reps give ICE 72 hours to seven days advance notice of inspections, the “Big Beautiful Bill” concocted by the GOP created pathways for pretending existing law didn’t exist.

That guidance specifically noted the DC Appeals Court had already ruled against the DHS by stating its current demands for advance notice were “inconsistent” with existing law. No doubt we’ll see similar misleading “guidance” issued by the DHS again in the near future as the DC Appeals Court has (again) rejected the government’s attempts to violate the law while litigation over these new policies continues.

A federal appeals court on Friday required the Trump administration to continue allowing lawmakers to inspect immigration detention facilities without advance notice, ruling unanimously that the impromptu visits posed minimal problems for the government.

The decision by a three-judge panel of the Court of Appeals for the District of Columbia Circuit preserved, for now, the ability of Democrats in Congress to make unannounced visits to detention centers and check on the conditions inside.

The one-page order [PDF] (and its 10-page explanation by Judge Rao) is inexplicably absent from the New York Times reporting. But it’s embedded below (and linked above).

Judge Rao says the government does have some interest in controlling access to its facilities for several, mostly credible reasons. But its belief that these concerns override existing law allowing congressional inspections is misplaced.

The government is entitled to deference on how it maintains the security of detention facilities, but the current record does not substantiate the government’s claim that oversight visits without advance notice impose harms beyond administrative inconvenience. While a close call, particularly because of the strong likelihood of success on the merits, I concur in denying a stay.

As Noem pointed out in her memo, the Big Beautiful Act created a flow of funding that was (theoretically) outside of the purview of existing appropriations laws governing ICE facility inspection. This order points out that this is no longer the case as that particular rider attached to the Act lapsed along with the rest of the DHS’s funding during the shutdown. The dead rider has not been re-attached, so the DHS’s insistence this means this particular funding can be used to thwart congressional oversight isn’t exactly a foregone conclusion.

That’s not to say this decision will ultimately lead to the DHS abandoning its demands for advance notice before inspections. While the government has failed to show it will suffer irreparable harm if congressional reps are allowed on-demand access to detention facilities, the plaintiffs here are legislators — people who aren’t generally allowed to sue the same government that employs them to obtain relief.

Judge Rao says the administration is likely to emerge victorious because the Democratic congressional reps don’t have standing. But that doesn’t mean the government has presented solid arguments about its own interests in denying access to detention facilities.

The government has credibly alleged inconvenience and disruption caused by congressional visits. But the government has not shown that these harms arise from congressional visits undertaken without seven days’ advance notice, as opposed to congressional visits generally. The government cites a single security incident involving the unauthorized presence of the Mayor of Newark in the secured area of an ICE facility and the alleged obstruction of the Mayor’s arrest by Representative McIver. But the government does not explain how this incident resulted from a lack of prior notice of the Representative’s oversight visit.

To be sure, the mayor of Newark is not allowed to access ICE facilities without advance notice or explicit permission. But that doesn’t extend to everyone else ICE wishes to keep out of its facilities — a list that seems to include every congressional rep that actually might want to perform an inspection.

In addition, this never used to be a problem. The Appeals Court isn’t convinced that it’s suddenly a problem now, just because this version of the DHS wants to pretend it is.

By contrast, the Members have provided numerous declarations attesting to congressional visits made with less than seven days’ notice that were conducted without incident since 2019. The government does not meaningfully dispute these accounts and responds only that the pending litigation incentivizes the Members to conduct their visits in a nondisruptive manner. Even if that is true, this pending appeal will continue to provide the same incentives for good behavior.

For now, congressional reps don’t need to give ICE a heads up before engaging in an inspection. That may change (at least temporarily) if the administration can show these congressional reps don’t have standing to pursue this litigation. But we can hope that any final dispensation of this case only grants the administration its argument about standing. The law is still the law, no matter how the DHS might feel about the law. When this all wraps up, the status should be reset to quo: Congressional reps have a legal right to inspect facilities without advance notice. Everything else is just mud in the water.

Filed Under: accountability, congress, dc circuit, dhs, ice, oversight, trump administration