Americans are witnessing a real-time dismantling of due process in this country, particularly when it comes to immigration enforcement. Last week, President Donald Trump invoked the Alien Enemies Act of 1798 to label Venezuelan immigrants as members of the Tren de Aragua gang and summarily ship them to foreign prisons. On Thursday, The New York Times reported that administration lawyers determined the 18th-century law, historically reserved for wartime scenarios, could allow “federal agents to enter homes without a warrant.”
The civil liberties we all value and that form a foundational part of U.S. democracy are quickly disappearing under the guise of “national security” and “state secrets.” It’s a big reason why U.S. District Judge James Boasberg called the Trump administration’s initial response to his order blocking the deportation flights of Venezuelan migrants under the act “woefully insufficient.”
“They’re not gonna stop us,” border czar Tom Homan declared on Fox News. “We’re not stopping. I don’t care what the judges think, I don’t care what the left thinks, we’re coming.”
The examples of why many critics have labeled ICE a ‘rogue’ agency are endless.
That level of open defiance didn’t come out of nowhere. Homan started at the Border Patrol as an agent in 1984 and rose through the ranks to serve as acting director of U.S. Immigration and Customs Enforcement (ICE) during Trump’s first term. He often boasts that he was the first ICE director to come up from within the agency. What he doesn’t say is that the agency was built to behave this way. From the beginning, ICE blurred the line between immigration enforcement and national security. It operated with few restraints and even fewer consequences.
ICE was created in 2003, when immigration enforcement was restructured in the wake of 9/11. As part of the newly formed Department of Homeland Security, the agency emerged from a climate of fear and mission creep, with a mandate that fused counterterrorism logic with immigration policy. The result was a militarized, opaque agency that quickly expanded its power. ICE now employs more than 20,000 people, and its budget is around $8 billion, almost triple what it was in 2003.
And for the last two decades, it has operated with little public scrutiny.
The examples of why many critics have labeled ICE a “rogue” agency are endless. As early as 2011, under a Democratic administration, the American Civil Liberties Union was already documenting how mass immigration detention was ripping apart people’s lives. In one example, that 2011 report included the story of a Vietnam veteran and a permanent legal resident from Haiti who, at the time of the report, had been detained for eight years.
Since then, the patterns have continued, as a 2020 ACLU report shows. In 2022, internal records revealed ICE agents had been using private data sources like utility bills and call records to conduct unauthorized surveillance. In 2023, Wired reported that ICE and its contractors “have faced internal investigations into abuse of confidential law enforcement databases and agency computers” that led to “a swath of unlawful behavior, from stalking and harassment to passing information to criminals.”
“Calling ICE a rogue agency doesn’t even quite get at how bad the problem is with them,” Emily Tucker, executive director at the Center on Privacy & Technology at Georgetown Law, told Wired in 2023. “They are always pushing to the limits of what they are allowed to do and fudging around the edges without oversight.”
One Venezuelan soccer player, deported despite having legally claimed asylum, was accused of gang affiliation because of a tattoo.
Over the past few weeks, ICE and DHS have ramped up their most public-facing enforcement campaign yet. Shackled Venezuelan immigrants, heads shaven, were paraded through a maximum-security prison in El Salvador and broadcast to the world as a message. But family members of some deportees have pushed back hard on the narrative, according to NBC News.
A mother recognized her son in the images from El Salvador, telling Telemundo that “he’s not a criminal. He has no criminal record,” and if he is being deported, the U.S. government “should send him back to his country of origin.”
One Venezuelan soccer player, deported despite having legally claimed asylum, was accused of gang affiliation because of a tattoo. His lawyer confirmed it was the logo of soccer team Real Madrid. CBS News later published the full list of names, raising more doubts about the credibility of the gang claims.
That hasn’t stopped officials like Secretary of State Marco Rubio from doubling down. Speaking with radio host Hugh Hewitt, Rubio said: “It is my view that judges do not have the right to conduct the foreign policy of the United States. Go beyond the immigration issues that people focus on. These are alien enemies in our country. They’re an organized group undermining the national security of the United States, and that needed to be dealt with.”
Even as this spectacle dominates headlines, other ICE abuses have gone under the radar. In New Mexico, the local ACLU filed a complaint alleging that at least 48 individuals have been “disappeared” by ICE. In Denver, longtime immigration activist Jeanette Vizguerra was suddenly detained earlier this week. She’s the same activist named by Time in 2017 as one of the 100 most influential people in the world. Immigrant rights groups have started a campaign for her release, though in this environment, the chances are slim to none.
The brazenness of these latest actions and the political forces backing them have reached even more extreme levels. Under Trump’s return, ICE has its strongest political ally yet. Enforcement is being ramped up with little regard for the courts, the justifications or the consequences.
But the speed and scale of expanded enforcement is only possible because of how ICE has been structured under a bipartisan consensus. The agency has long relied on subcontracted enforcement, including privately owned detention centers with poor oversight. These contractors profit from opaque systems with little accountability. When violations happen, blame is diffused. There’s always someone else to point to. Meanwhile, the government, under both Republicans and Democrats, keeps cutting the checks.
This is a critical moment to ask not just what ICE is doing, but what it was built to do. That should be a wake-up call for both immigrant communities and everyone who believes that due process and civil liberties must always be protected in this country. Trump’s extremism has a bipartisan foundation, and only by gutting and replacing that foundation can we have immigration enforcement that also respects justice.
