Commentary: Surge in funding for US Immigration and Customs Enforcement (ICE).

Does the surge in ICE funding matter?

The recent surge in funding for ICE is extraordinary. Even so, changes to ICE as an agency, on their own, would not necessarily resolve the underlying issues. There would still need to be a federal policing authority to enforce immigration laws. If not ICE, that function would likely be assumed by another entity, possibly under a different name. What ultimately matters most are the policies of the current administration, which shape how immigration enforcement is carried out through whatever institutional structure exists.

Has the rhetoric troubled some Americans?

A notable feature of the ICE recruitment materials is the use of rhetoric commonly associated with war or battle, yet in a domestic enforcement context. For some Americans—including individuals who previously did not hold strong views on immigration policy—this framing has been unsettling. The concern is less about immigration enforcement itself than about the tone and symbolism of invoking the language and imagery of war in government operations conducted within the United States.

That reaction is not universal. Many Americans support these efforts and view the rhetoric as appropriate or necessary. At this stage, it is difficult to say that there is a clear majority view, as public opinion appears to be continuing to evolve.

Is it legal for ICE agents to conceal their identity?

At the heart of the legal debate is the fact that ICE agents masking themselves or lacking visible identification is not, as a general matter, clearly lawful or clearly unlawful. The legality of such practices is highly context-dependent. Courts often look to situational factors such as officer safety, operational necessity, and the nature of the enforcement activity.

For example, undercover operations have a long and often legitimate history in U.S. policing, including in immigration enforcement. Whether similar justifications apply outside those contexts is likely to be assessed on a case-by-case basis.

Can states ban these practices?

While California has enacted restrictions (No Secret Police Act) and other states or local authorities are considering similar measures, there are significant constitutional questions under the Supremacy Clause. Under long-standing principles of U.S. constitutional law, states and local governments are generally limited in their ability to interfere with the federal government’s execution of its duties. Immigration enforcement is widely understood to be a core federal responsibility.

As a result, it is far from certain that courts would uphold state or local efforts to restrict the practices of federal agents when they are engaged in federal enforcement activities.

What does the Chicago injunction tell us?

A federal court previously issued a temporary injunction requiring ICE agents operating in the Chicago area to wear visible identification, subject to an exception for undercover operations. While this suggests that the legal arguments raised warrant careful consideration, temporary injunctions are often granted to preserve the status quo while courts work through complex and unsettled legal questions.

As such, the order should not be read as a definitive statement on the legality of these practices nationwide. Litigation in this area is likely to continue, and courts in different jurisdictions may reach different conclusions.