A former federal judge criticized the Supreme Court’s conservative majority on Tuesday morning. She accused the justices of allowing ICE to operate with little constitutional oversight as the Trump administration increases immigration arrests nationwide.
Former judge Nancy Gertner shared her views during an appearance on MS NOW. She elaborated on an opinion piece she wrote for The Atlantic, which warned that the legal framework around modern immigration enforcement has become far too lenient.
In her essay, Gertner argued, “Much of what ICE is doing is not remotely constitutional. The Court decisions that laid the groundwork for the agency’s lawlessness no longer hold up to basic scrutiny.” She added that the high court is failing to control an agency she sees as increasingly out of line under the Department of Homeland Security.
“Untold numbers of ICE agents have appeared on America’s streets in recent months, and many of them have committed acts of aggression with seeming impunity,” Gertner wrote. “Many of these tactics are plainly illegal. The Constitution applies to federal immigration officers: The Fourth Amendment protects against unreasonable searches and seizures and excessive force, and it requires a warrant to search a private home. The Fifth Amendment guarantees due process and prohibits self-incrimination. The Sixth Amendment establishes a person’s right to counsel. Why, then, are they getting away with not following the Constitution?”
On television Tuesday, Gertner answered this question directly. She said the Supreme Court has ignored what she described as the Trump administration violating legal boundaries on enforcement, placing “far too much faith in ICE’s commitment to respecting people’s constitutional rights.”
During the segment, co-host Katty Kay questioned Gertner about the options available for people caught in enforcement actions that may be illegal, including citizens, lawful permanent residents, or individuals who have not committed crimes.
“It doesn’t sound like they have much recourse,” Kay stated. She painted a picture of two legal precedents that give ICE extensive power, a Supreme Court unlikely to step in, and a White House pushing aggressive tactics.
“They don’t have much recourse,” Gertner replied.
She focused on what she called an absurd remedy the courts have suggested in the past. “One of the things the court mentioned was that, of course, you can file a complaint with ICE internally. That is fundamentally ridiculous to me.”
Gertner also warned that the way the administration conducts arrests makes it harder for people to assert their rights in real time, even when those rights exist on paper. “We don’t even know where immigrants go; we don’t know where they are,” she said, describing a system that can move people quickly and quietly.
She pointed out expedited removal, a process that previously applied at the border but is now used much more broadly. “Now, the Trump administration has claimed it’s for the entire country. So people are not even in a place where they can claim rights, even if they had them.”
She countered a common argument made by DHS leadership and supporters of stricter enforcement, suggesting that ICE officers face danger in the field and need broader latitude. “I’m just reminded of something Kristi Noem says: ICE officers are subject to attacks and are in a dangerous profession,” Gertner said. “The idea that police, who are regulated in this way, do not face attacks or are not in even more danger is extraordinary.”
Overall, Gertner’s message was that constitutional protections are essential in immigration enforcement. She argued that the Supreme Court’s approach creates an environment where violations can happen with little immediate consequence for the agency responsible.
