Democratic members are again claiming that they can demand access to any federal facilities without approval or even notice to a given agency.
We saw previously how Rep. LaMonica McIver stormed an ICE facility and allegedly assaulted an officer. She and others claimed that they had the right of entry without the pre-approval of the agency. Now, after another attempted entry at an ICE facility in Baltimore, an array of Democratic members have sued over their denial. The lawsuit is, in my view, fundamentally flawed, but the members appear to be hoping for another obliging judge.
Both sides could be adopting Sen. Chris Van Hollen’s position outside of the ICE facility that “This is BS, plain and simple.”
This week, Van Hollen and several other House and Senate Democrats showed up in Baltimore at the Fallon Federal Building and demanded entry. The group included Sen. Angela Alsobrooks and four members of Maryland’s House delegation: Reps. Glenn Ivey, Johnny Olszewski, Sarah Elfreth and Kweisi Mfume. They then carried out a brief sit-in outside of the door and Van Hollen even objected that the sign said “Welcome,” but they were not welcomed.
As with McIver, the Democrats insisted that they could just show up at any federal office or facility and demand access as a matter of oversight authority. If that were the case, members could barge into any executive office from the White House to the weather service without warning or approval. No court has ever recognized such authority since it would eviscerate the inherent powers of the Executive Branch in our tripartite constitutional system.
The complaint offers a jumbled collection of claims and is poorly conceived and crafted, in my view.
The most relevant seems to be Section 527(a) of the Further Consolidated Appropriations Act, 2024 (Public Law 118–47), which states that:
“None of the funds appropriated or otherwise made available to the Department of Homeland Security by this Act may be used to prevent…a Member of Congress…from entering, for the purpose of conducting oversight, any facility operated by or for the Department of Homeland Security used to detain or otherwise house aliens.”
The Fiscal Year 2024 Appropriations Act also included a provision that states “the Department of Homeland Security may require that a request be made at least 24 hours in advance of an intent to enter a facility described in subsection (a).”
First, even if constitutional, this provision only applies to facilities that are used to “detain or other house aliens.” The Department of Homeland Security (DHS) has contested that status in past protests. Second, the law cannot, and arguably does not, give carte blanche for instant access. An agency can demand notice to allow it to protect the security and safety of personnel and visitors. DHS can argue that it is not denying entrance so long as they are given notice in advance.
The issue is not the right to inspect but the right to instant access. Of course, the members filed in Baltimore and may hope for a judge who is more accommodating than scrutinizing on authority.
The members could argue that oversight, at times, requires inspections without prior warning to prevent the loss of evidence or agency efforts to conceal poor conditions. However, if the Congress can force such immediate access to ICE facilities, it could presumably demand such access on any federal property. All agencies are subject to the oversight of one or more congressional committees. That sweeping authority runs against the grain of Article II and can create dangerous and obstructive elements for federal officials.
Courts are tasked with reading laws narrowly to avoid such constitutional questions. The question is what constitutes “preventing” under the law. The Administration is not denying access, just requiring advance notice.
This sets up a conflict between Article I and Article II authority. The Administration will argue that immediate and unrestricted access to any ICE facility intrudes on the ability to exercise executive authority. In my view, there must be some area for reasonable limitations on the exercise of oversight authority. What is absolutely clear is that members cannot seek, as did Rep. McIver to force their way into facilties.
Here is the lawsuit: Neguse v. ICE
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