In our disfunctional government, shutdowns have become so common they are barely news. But believe it or not, we are in a partial federal government shutdown right now. The main issue preventing a budget resolution to be passed seems to be what, if any, new restrictions to be put on ICE and/or CBP. The restrictions Democrats are proposing, requiring that immigration agents get warrants and stop racial profiling, "real accountability" (whatever that means), and requiring them to wear body cameras.
The problem is that some of those things are already required by law. Judicial warrants are required by the Constitution! This administration has no problem ignoring legal requirements. And the administration is adopting body cameras this week, before reaching any funding deal. But nothing would really stop them if officers turn the cameras off or stop wearing them. Plus they control the camera footage. Just having cameras does no good if this fascist agency has total control of the tape.
But there is one simple thing that the Democrats could insist upon that would make a real difference and would be enforceable: End qualified immunity for ICE and CBP officers. If ICE and Border Patrol were liable for their officer's misconduct, that could potentially be an enforceable check against abuse. If victims of ICE/CBP officer violence could sue for damages, that could mean real accountability, and compensation for people who they are harming. I bet if that happened we would immediately see a dramatic drop in the number of car windows smashed, ransacked homes, and even shootings. It would also create an incentive for ICE and CBP officers to have body cameras turned on--that is their alibi against false accusations. And without immunity that would give an avenue to get footage that is less exonerating through discovery.
But most importantly, lifting immunity for those officers would move enforcement of the new restrictions out of the executive branch that Trump controls. The courts would decide liability. We would not have to hope that the DHS honors any deal about how to restrict officers later on. I realize the courts are flawed. There are a lot of terrible Trump-appointed judges on the bench who might dismiss cases about the most egregious abuses, and the number of Trump judges is growing. But there are still a lot of non-Trump judges, and the DHS can't bet on getting a Trump judge every time so it still could serve as a check.
Finally, having CBP and ICE pay for their abuses is also a back-door way to have at least some of that enormous budget increase pay for something other than abusing people. When the huge increase in ICE funding passed last year, there was a lot of concern that would lead to even more egregious abuses. But if ICE officers did not have immunity, that enormous budget could at least partially be turned into a compensation fund.
Am I too optimistic about the power of lawsuits to bring justice? Maybe. But I don't think there is any question that lifting officer immunity would make a much bigger difference than any of the things that Chuck Schumer is insisting upon now that the administration could easily ignore later.
