The Illusion of Reform: Why DHS Restraints Fail Without a Path to the Courthouse
Rights are an illusion if the only thing stopping government agents from violating them is their own sense of right and wrong. When that conscience fails, the results are predictable. We have witnessed what happens when federal immigration agents evade transparency by refusing to provide their names or the names of their employing agencies to the public they supposedly serve. Similarly, the presence of immigration agents in sensitive places has already led patients to avoid doctors’ offices, clinics, and hospitals out of fear, putting off care they desperately need. While the Constitution explicitly prohibits profiling and the DHS already maintains comprehensive use-of-force standards, these rules mean nothing if there are no consequences for disregarding them.
Absent a statutory cause of action by which harmed individuals can seek civil damages for constitutional violations, this culture of impunity will continue. Democratic proposals include authorizing states to sue DHS over deplorable detention conditions, while keeping the courthouse doors closed to the detainees themselves—the very people suffering the abuse. What’s more, the notion that Governors Abbott or DeSantis would sue the Trump administration to protect immigrant detainees is a political fantasy. The American people must ask why a victim cannot sue the specific officer who violated their rights.
Body cameras, another Democratic suggestion, are invaluable tools, but only to the extent that they are always rolling and made public immediately. A better solution entails Congress making clear what eight federal circuit courts have already held: that the public has a right to record law enforcement.
Meaningful reform requires compliance. But since the administration will not comply voluntarily, a remedial scheme is needed. However, correcting DHS’s deplorable behavior will not be accomplished by a small tweak to the specific ways in which agents target civilians, but rather by a strong deterrent. Imagine a legal system that proscribed theft and murder as crimes but stripped away any penalty for committing such acts. In such a vacuum, the only remaining check on power is an offender’s own conscience. When that conscience fails, as it failed in the streets of Minneapolis, nothing remains to protect civilians.
The solutions congressional Democrats have offered, while thoughtful, are at best illusory. Solutions that function as mere suggestions are no solutions at all. Democrats are in the minority and have limited means to advance their own policy agenda. But the House Republican majority is tiny, and, in the Senate, where most legislation requires sixty votes to get over the finish line, Democrats have the power to demand substantive reforms. Members of Congress cannot continue to bankroll the president’s mass deportation agenda while blocking justice for those harmed in the process.
As my Cato colleague Dominik Lett points out, ICE and Border Patrol remain flush with cash thanks to last year’s “One Big Beautiful Bill Act.” This financial cushion protects them from the current standstill, but it should not protect them from scrutiny. Now is the time to demand systemic reform. We must ensure that no government agent is above the law or cloaked in immunity. If Congress continues to fund DHS without addressing the total lack of accountability for federal agents, their concerns amount to nothing more than political theater.
Mike Fox is Legal Fellow at CATO. This article, originally posted to the CATO Institute website, is published courtesy of the Cato Institute.
