⚖️ ICE Claims "Unreviewable Discretion" Over Congressional Facility Access
How DHS's Facility Visit and Engagement Protocol Contravenes Federal Law and the Constitution
✏️ Editor's Note
Last week, we published an explainer on ICE’s legal authority and constitutional limits entitled The Role of ICE and the Limits of Civil Enforcement Authority. The explainer provided a framework for understanding the statutory basis for ICE’s immigration enforcement powers and distinguished between actions authorized under federal law and those that are not.
In today’s edition, we focus on a new Department of Homeland Security (DHS) protocol, issued in June 2025, that appears to conflict with both statutory law and the Constitution’s requirements for congressional oversight, as established in Article I of the U.S. Constitution.
This edition draws from primary documents, statutory text, and well-established Supreme Court rulings to assess the legal and constitutional implications of this policy. While no formal legal commentary has yet been published, Engage For Democracy will update this edition as such analyses become available.
📍 What Happened
In June 2025, the Department of Homeland Security (DHS) issued a revised internal protocol titled ICE Facility Visit and Engagement Protocol for Members of Congress and Staff. The protocol outlines updated procedures for congressional visits to U.S. Immigration and Customs Enforcement (ICE) facilities. It states that while members of Congress may access ICE detention centers without prior notice, as provided for in Section 527 of the 2024 Consolidated Appropriations Act, ICE field offices are not subject to the same provision.
The protocol further states that ICE retains "sole and unreviewable discretion" to deny, cancel, reschedule, or terminate congressional tours of any ICE facility, including detention centers [1]. This assertion of unreviewable authority over Congressional oversight directly contravenes the Supreme Court's holding in McGrain v. Daugherty (1927) that oversight power is "an essential and appropriate auxiliary to the legislative function" that cannot be subordinated to executive discretion. The new DHS protocol also specifies that members of Congress are asked to provide 72 hours' notice before visiting ICE field offices and that congressional staff must give 24 hours' notice before visiting detention centers, despite the statutory language in Section 527, which affirms that members of Congress may conduct unannounced oversight visits [5].
According to press reports and congressional offices, access under the new policy has already been denied to multiple lawmakers, including Rep. Judy Chu in Los Angeles and four House members in Illinois. In the same time frame, several Democratic officials, including Rep. LaMonica McIver, Newark Mayor Ras Baraka, and New York City Comptroller Brad Lander, were arrested or charged in connection with separate incidents outside ICE facilities[3][4].
ICE maintains that field offices are administrative in nature and do not fall under the statutory definition of detention facilities. However, as Reuters has reported, individuals are sometimes held at these locations before being transferred to detention centers. This practice has prompted some legal observers and lawmakers to question whether excluding field offices from oversight access aligns with the intent of existing federal law [4].
📜 What the Constitution and Law Say
What the Constitution Says
The U.S. Constitution gives Congress not only the power to legislate but also the duty to oversee the implementation of the laws it enacts. That authority arises from Article I of the U.S. Constitution, including:
Article I, Section 1 - which vests all legislative power in Congress.
Article I, Section 8, Clause 18, known as the Necessary and Proper Clause, which affirms that Congress may make all laws “necessary and proper” for carrying out its enumerated responsibilities. This includes not only powers expressly listed in the Constitution, but also those that are implied or incidental to carrying out its legislative duties.
The Supreme Court has long interpreted the “Necessary and Proper” clause as authorizing Congress to use all means that are appropriate and clearly related to executing its constitutional responsibilities. Oversight of executive agencies—including hearings, investigations, and site visits—is well within this scope, because it is necessary to ensure that laws are implemented faithfully and with accountability [6].
The Framers included this clause to address a core weakness in the Articles of Confederation, which limited federal authority to only powers explicitly named. [10] The Constitution, by contrast, equips Congress with the tools it needs to supervise how laws are carried out. As Chief Justice John Marshall wrote in McCulloch v. Maryland (1819), Congress may select “the means by which [its powers] are to be carried into execution,” so long as they are plainly adapted to constitutionally valid ends. [11]
This clause ensures that Congress can carry out the powers it does have. Oversight, including unannounced site visits to detention centers operated by federal agencies, is one of those essential means.
🧾 What the Law Says
In addition to constitutional principles, federal law explicitly protects the right of congressional oversight in this area. Section 527 of the Department of Homeland Security Appropriations Act, 2024 (Public Law 118–47) states:
(a) None of the funds appropriated or otherwise made available to the Department of Homeland Security by this Act may be used to prevent any of the following persons 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…
(1) A Member of Congress.
(2) An employee of the United States House of Representatives or the United States Senate designated by such a Member for the purposes of this section.(b) Nothing in this section may be construed to require a Member of Congress to provide prior notice of the intent to enter a facility described in subsection (a) for the purpose of conducting oversight.
(c) With respect to individuals described in subsection (a)(2), 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).
This provision is clear: Members of Congress may enter DHS detention facilities without prior notice, and no DHS funding may be used to obstruct that access. Only designated congressional staffers may be required to give 24 hours’ notice—and only when visiting qualifying facilities used to detain or house immigrants [7].
As recently as June 2025, Rep. Judy Chu and multiple colleagues were reportedly denied entry to ICE facilities despite arriving for oversight visits, directly contravening Section 527. These reported denials of access appear to directly contravene Section 527 and raise broader concerns about constitutional violations and executive overreach [8].
⚖️ Why This Matters
The June 2025 DHS policy challenges core principles of constitutional oversight. By asserting “sole and unreviewable discretion” to deny congressional entry to any ICE facility, including detention centers, and by excluding field offices from oversight entirely, the policy appears to directly conflict with both federal law and Article I of the Constitution.
This matters because:
Congress is responsible for funding and overseeing DHS and ICE and must be able to inspect how those resources are used, particularly where civil liberties may be at risk.
Field offices often serve as initial intake sites where immigrants are temporarily held, questioned, or processed, making them essential locations for oversight.
Section 527 affirms Congress’s authority to conduct unannounced visits, and the Supreme Court upheld the legislature’s investigative powers as essential to democratic accountability.
Placing final authority over oversight in the hands of the agency being overseen inverts the structure of constitutional government. It weakens the checks that prevent abuses of power.
Congressional oversight is the constitutional safeguard that allows the public to hold the government accountable.
This is not a hypothetical concern. On June 8 and again on June 18, ICE reportedly denied Rep. Judy Chu and other Members of Congress lawful entry to the Adelanto detention center—even after they arrived in person to conduct oversight of mass raids in their districts. In Pasadena, Rep. Chu documented scenes of ICE agents aiming weapons at civilians, failing to present warrants, and endangering public safety through reckless conduct. These are precisely the kinds of abuses that congressional oversight is meant to prevent. When executive agencies can bar elected officials from seeing what is happening inside detention centers, the Constitution’s system of checks and balances begins to unravel [8].
Similarly, in New York, ICE agents recently arrested NYC Comptroller Brad Lander outside an immigration courthouse and denied entry to Reps. Jerry Nadler and Dan Goldman—despite their constitutional and statutory oversight roles. These actions further illustrate how DHS’s policy is being used to insulate ICE operations from lawful scrutiny and public accountability [9].
📬 Take Action
1) 📩 Email your Senators and Representative (all at once in 3 easy steps):
Copy the message below
Click here to Go to Democracy.io
Paste the message (personalize if you’d like), fill in your info, and click Submit
📝 Message to the Senate and the House
Subject: Defend the Constitution and the Co-Equal Authority of Congress: Exercise Congressional Authority to Oversee ICE Facilities
As your constituent, I am writing with deep concern about the Department of Homeland Security's June 2025 protocol that appears to unconstitutionally restrict congressional access to ICE detention and processing facilities. This policy grants ICE "sole and unreviewable discretion" to deny members of Congress entry, even when Article 1 of the Constitution and federal law expressly authorizes such visits without notice.
Article 1 of the U.S. Constitution gives Congress not only the power to legislate but also the duty to oversee the implementation of the laws it enacts. Federal law (Section 527 of the DHS Appropriations Act) explicitly prohibits using federal funds to prevent Congressional access to detention facilities.
As a co-equal branch of government, Congress has not only the authority but the responsibility to conduct oversight of federal agencies. That includes unimpeded access to government-run detention facilities, where due process, civil liberties, and human dignity may be at risk.
To allow an executive agency to decide whether, when, and how it will be subject to oversight, without external review, is to erode the very foundation of our constitutional system.
I respectfully urge you to:
Publicly reject DHS and ICE's new oversight policy;
Demand full compliance with Section 527 of the DHS Appropriations Act, 2024;
Use the full range of Congress’s constitutional tools to compel compliance, including withholding appropriations, issuing contempt citations, or other enforcement mechanisms
Coordinate with other members to conduct immediate, unannounced facility visits to test and challenge this unconstitutional policy
History has shown that when government agencies operate without oversight, injustice and abuse often follow. Please act now to preserve the constitutional balance of powers that protects all Americans, regardless of party, and uphold Congress's duty to the American people.
Thank you for your service in upholding the Constitution and this nation’s democracy.
2) 📲 Text RESIST to 50409 or message via facebook.com/resistbot (where you can send an email, text, or fax!)
Copy the message below (and personalize if you’d like)
Text RESIST to 50409 or Message Via facebook.com/resistbot
📝 Message (Shorter format for Text Messages to Congress)
As your constituent, I am writing with deep concern about the Department of Homeland Security's June 2025 protocol that appears to unconstitutionally restrict congressional access to ICE detention and processing facilities. This policy grants ICE "sole and unreviewable discretion" to deny members of Congress entry, even when Article 1 of the Constitution and federal law expressly authorizes such visits without notice.
As a co-equal branch of government, Congress has not only the authority but the responsibility to conduct oversight of federal agencies. That includes unimpeded access to government-run detention facilities, where due process, civil liberties, and human dignity may be at risk.
To allow an executive agency to decide whether, when, and how it will be subject to oversight, without external review, is to erode the very foundation of our constitutional system.
Thank you for your service in upholding the Constitution and this nation’s democracy.
That closes out today’s edition and we’ll be back next week. In the meantime:
📚 Read to understand the stakes
🤝 Share with friends, family, and colleagues from all political backgrounds
📬 Act by writing, emailing, and calling our elected officials
When institutions fail, informed citizens become the ultimate check. People need to understand what's being lost so they can demand accountability. Thank you for being part of our educational initiative.
In solidarity,
Engage for Democracy
📚 Footnotes
ICE Facility Visit and Engagement Protocol for Members of Congress and Staff, U.S. Immigration and Customs Enforcement, June 2025, pp. 2–3. (Quote: “sole and unreviewable discretion…”) https://www.ice.gov/doclib/detention/iceFacilityVisitationCongressional.pdf
Section 527, Further Consolidated Appropriations Act, 2024, Public Law 118-47. https://www.congress.gov/118/plaws/publ47/PLAW-118publ47.pdf
Vivian Ho, “DHS tightens rules for congressional visits to ICE facilities,” Washington Post, June 19, 2025. https://www.washingtonpost.com/immigration/2025/06/19/dhs-ice-immigration-visits-congress
Jonathan Allen, “Trump administration puts new limits on Congress visits to immigration centers,” Reuters, June 19, 2025. https://www.reuters.com/legal/government/trump-administration-puts-new-limits-congress-visits-immigration-centers-2025-06-19
See McGrain v. Daugherty, 273 U.S. 135 (1927). https://supreme.justia.com/cases/federal/us/273/135/
Art. I, Sec. 8, Cl. 18, Necessary and Proper Clause. Constitution Annotated, Congress.gov. https://constitution.congress.gov/browse/essay/artI-S8-C18-1/ALDE_00001242; see also McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). https://supreme.justia.com/cases/federal/us/17/316/
Department of Homeland Security Appropriations Act, 2024, Section 527. Public Law 118–47. Ibid.
Rep. Judy Chu Fights for Immigrant Rights Amid Escalating ICE Raids, June 19, 2025. https://chu.house.gov/media-center/press-releases/rep-judy-chu-fights-immigrant-rights-amid-escalating-ice-raids
Luis Ferré-Sadurní, “Brad Lander Tried to Escort Immigrants Facing Arrest. He’s Not Alone,” New York Times, June 19, 2025.https://www.nytimes.com/2025/06/19/nyregion/ice-immigrants-volunteer-escorts-courthouse.html
U.S. Department of State, Office of the Historian, Constitutional Convention and Ratification, 1787–1789. https://history.state.gov/milestones/1784-1800/convention-and-ratification
See McCulloch v. Maryland (1819). https://supreme.justia.com/cases/federal/us/17/316/