Founding Fathers Guarded Against ‘Show Me Your Papers’ ICE Raids

Joe Rogan was onto something about America when he decried the federal government’s immigration enforcement tactics on his popular podcast.

“Are we really gonna be the Gestapo,” he asked. “‘Where’s your papers?’ Is that what we’ve come to?”
 
Rogan’s reaction to the Immigration and Customs Enforcement’s aggressive approach in confronting citizens and non-citizens in places such as Minneapolis likely would have been shared by our Founders. Among its list of grievances, the Declaration of Independence indicts King George III for sending “hither swarms of Officers to harass our people.”

The Founders addressed this with the creation of the Fourth Amendment, which prohibits unreasonable government searches and guarantees “the right of the people to be secure in their persons, houses, papers, and effects.” 

Accordingly, federal judges have pushed back against government harassment and defended the people’s right to privacy in their personal information. 

Right to Privacy

Demanding the government respect people’s privacy isn’t new. 

In 1890, before he became a justice of the Supreme Court, Louis Brandeis co-authored one of the most important articles ever published by the Harvard Law Review:  “The Right to Privacy.” The article was prompted by the intrusive impact of a new technology, instant flash photography, on personal privacy.
 
Later as a justice, Brandeis crystallized the right in his famous 1928 dissenting opinion in Olmstead v. US, which concerned new telephone surveillance technology.

“The makers of our Constitution … sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations,” he wrote. “They conferred, as against the Government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men.”

In 1974, the Federal Privacy Act enacted this constitutional value into statutory law. That Act expressly stated “the right to privacy is a personal and fundamental right protected by the Constitution of the United States.” 
 
Congress adopted the 1974 privacy law specifically to deal with potential privacy abuses that could result from the government collecting and aggregating too much personal information, too loosely (i.e., without adequate notice, rules, and procedures) in overly intrusive dossiers in ever larger and more accessible computer databases.

Even then, Congress understood that “the use of computers and technology has magnified the potential harm to individual privacy… and misuse of information systems endangers legal protections, including the right to due process.” 

Confidential Voter Data

In a recent case, District Judge David O. Carter applied the Founders’ wisdom, and the Constitution they framed, to reject the government’s demand that California produce an unprecedented and unjustified amount of confidential voter data. It apparently intended to combine that information with the same data being demanded from other states in a massive, centralized database. 

“The taking of democracy does not occur in one fell swoop; it is chipped away piece-by-piece,” Carter wrote in a Jan. 15 decision that echoed Rogan’s alarm. “The erosion of privacy and rolling back of voting rights is … not [for] the Executive. The Constitution demands ... respect, and the Executive may not unilaterally usurp the authority over elections it seeks to do so here.”

Judge Carter was on solid footing to deny the Department of Justice’s demand. He cited Chief Justice John Roberts’ decision against the first Trump Administration in Department of Commerce v. NY, in which the high court blocked the Trump administration from adding a citizenship question to the 2020 Census.

Judge Carter found DOJ’s justification for why it needed the data to be contrived. He determined the reason the department offered—to assure state compliance with “voter roll maintenance enforcement and compliance”—was a mere pretext for its real purpose, “a nationwide quest to gather the sensitive information of millions of Americans for use in a centralized federal database.” 

The Constitution expressly assigns the conduct of elections to the states. Judge Carter applied the Constitution and the Privacy Act to bar DOJ’s request for California’s unredacted voter roll because “voter registration, participation in elections, as well as party affiliation are all types of political expression protected by the First Amendment.” 

As the author of many of the Court’s recent privacy opinions, Chief Justice Roberts should get this.  Writing for the majority in Americans for Prosperity Foundation v. Bonta, he drew on privacy rights and the First Amendment to prohibit California from releasing information about certain conservative charitable donors to the state’s attorney general.

He ruled against the attorney general, who said he needed the information to uncover possible fraud, because disclosing it would burden the donors’ constitutional rights of association and speech, and could lead to harassment, intimidation, and chilling effects. The attorney general’s interest in investigating fraud didn’t overcome the constitutional values at stake.
 
There is no dispute that purging voter rolls, the case before Judge Carter, and enforcing immigration laws, the issue aired by Rogan, are worthy, proper, and necessary governmental objectives.

But the government is not absolved from fully complying with constitutional and legal requirements.  As Chief Justice Roberts wrote in another decision, Riley v. California, the police are not allowed to conduct a full search of an arrested suspect’s cell phone without a warrant. Why? Because, as the Chief Justice explained, the right to “privacy comes at a cost.”

Role to Play

Besides the need to follow the law in granting the government access to personal information, there can also be other relevant reasons why the answer should be “no.”

 Sometimes agents may simply be intent on harassment, like King George’s officers. Other times, stated rationales for demanding information could be valid, but probably aren’t.

Courts have a role to play in distinguishing the ostensible from the actual. That’s why, in the California voter roll case, Judge Carter invoked the words of the Chief Justice in the Trump Census case that judges are “not required to exhibit a naiveté from which ordinary citizens are free.”

 Judge Carter denied the government’s massive request for sensitive voter data because he couldn’t—and needn’t— accept “explanations untethered to the reality of what the government has said outside of the courtroom.” 

Rogan had it exactly right. In America, the government can’t go around demanding our papers without a good reason. And that reason has to hold up against our nation’s fundamental papers—the Constitution and laws of the United States. That’s what we expect in America.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Alan Charles Raul teaches privacy and digital governance at Harvard Law School. He served as vice chairman of the Privacy and Civil Liberties Oversight Board under President George W. Bush and as associate counsel to President Ronald Reagan.

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