Shutdown flips ICE oversight fight as DHS moves to block surprise lawmaker visits
The Department of Homeland Security told a court Friday that it could once again ban federal lawmakers from making unannounced visits to ICE detention centers after funding restrictions passed by Congress had expired.
Government lawyers wrote to the D.C. federal court that there was "no lawful basis" for the court to continue blocking the policy, saying the partial government shutdown cleared the way for DHS to enforce it. The policy has been a point of contention in court for months as Democratic House lawmakers show up unannounced at facilities. Rep. Jamie Raskin, D-Md., used a recent surprise visit he made to a detention center in Maryland, for instance, to slam DHS for what he said were "disgraceful," overcrowded conditions.
DHS first imposed a seven-day notice requirement for Congress members who wanted to visit Immigration and Customs Enforcement facilities last summer, leading 13 House Democrats to sue.
The plaintiffs included Raskin, Rep. Joe Neguse, D-Colo., and Rep. Dan Goldman, D-N.Y., who argued that since 2019, Congress and the president have passed funding bills that allowed lawmakers to conduct "real-time oversight of the true conditions" of immigration facilities.
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Government lawyers countered that the courts did not have the authority to resolve what they said was a legislative dispute and that ICE needed the seven-day notice to be able to "allocate the resources necessary for congressional visits."
"Those protocols therefore reasonably balance the need for safe and secure visits with Members’ interest in conducting oversight," the lawyers wrote. "The protocols are also consistent with ICE’s statutory obligations because § 527 does not prohibit ICE from deriving an advance notice requirement from some other statutory source of authority, and other statutes grant [DHS] and ICE broad discretion to oversee detention facilities."
Judge Jia Cobb has twice blocked DHS from enforcing the rule, saying in her latest decision this month that the policy was crafted based on already-approved funds. Cobb also said the policy caused irreparable harm to Congress members by "denying them the ability to carry out timely oversight of covered facilities" at a time when the Trump administration's immigration crackdown and deportation methods have become a polarizing topic.
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"If anything, the strength of that finding has become greater over the intervening weeks, given that ICE’s enforcement and detention practices have become the focus of intense national and congressional interest," Cobb, a Biden appointee, wrote.
The partial government shutdown, centered on DHS funding, began Saturday. It followed an impasse after Democrats demanded immigration reforms and Republicans resisted many of their proposals, including requiring judicial warrants for private home entries and placing other limits on ICE operations.
The funding lapse, which remains indefinite as Congress is on recess, has shut down funding for parts of DHS, including TSA, FEMA and other agencies, and has forced many employees deemed essential to work without pay.
Cobb has not addressed DHS’ latest notice that it plans to revert to the seven-day notice requirement.