FOIA Archives - Columbia Law Review

Introduction After a series of public losses in its war on “sanctuary” cities, the first Trump Administration deployed the immigration subpoena, a new and formidable weapon in this fight.[footnote]Colleen Long, Immigration Agency Subpoenas Sanctuary City Law Enforcement, AP News (Jan. 15, 2020), https://apnews.com/article/immigration-ap-top-news-subpoenas-arrests-politics-ba19871e3754e9c4c9838bd3b600154e [https://perma.cc/TV3V-3P6P] [hereinafter Long, Immigration Subpoenas] (quoting ICE leadership describing this use of immigration subpoenas as a major change and indicating that they had “never been sent to law enforcement agencies before”).[/footnote] It used these agency-issued subpoenas to retaliate against its political foes—cities and states that refused to participate in federal immigration enforcement—and demand they do what the federal government could not otherwise compel: provide confidential information that would allow ICE to arrest, prosecute, and deport their constituents.[footnote]Stef W. Kight, Trump Has Declared War on Sanctuary Cities, Axios (Feb. 19, 2020), https://www.axios.com/2020/02/19/trump-immigration-lawsuit-subpoena-sanctuary-cities [https://perma.cc/3ZGV-JJW8] (describing the Trump Administration’s efforts to force state and local cooperation with federal immigration enforcement); see also Jim Mustian, ICE Ups Ante in Standoff With NYC: ‘This Is Not a Request’, NBC News (Jan. 18, 2020), https://www.nbcnewyork.com/news/local/ice-ups-ante-in-standoff-with-nyc-this-is-not-a-request/2261924/ [https://perma.cc/MVQ6-TE4G] (reporting that ICE issued subpoenas to New York City in an attempt to circumvent the city’s sanctuary policies).[/footnote] Unlike President Donald Trump’s prior efforts, this tactic proved effective. Of course, some cities initially resisted,[footnote]See, e.g., Colleen Long, Denver Officials Won’t Hand Over Information Sought by Immigration and Customs Enforcement, Colo. Sun (Jan. 17, 2020), https://coloradosun.com/2020/01/17/denver-ice-immigrants-subpoena/ [https://perma.cc/MR2X-R7HV] (reporting that Denver officials refused to comply); Jim Mustian, Feds Ask Judges to Enforce Immigration Subpoenas Sent to NYC, AP News (Feb. 3, 2020), https://apnews.com/article/cdaba9b7b87e4542b43fbf003a560f8a [https://perma.cc/75DK-3TLZ] (last updated Feb. 3, 2020) (reporting that New York City initially did not provide information in response to the subpoenas, arguing that they “lack[ed] a legitimate purpose”).[/footnote] but once the spotlight faded, that defiance was short-lived. Challenging these subpoenas, the cities seemed to conclude, was futile. And they stood down, quietly turning over the very information they had promised to protect.[footnote]See, e.g., Memorandum in Support of Motion to Dismiss at 2, United States v. City of New York, No. 1:20-mc-256 (E.D.N.Y. filed Feb. 18, 2020), 2020 U.S. Dist. Ct. Motions LEXIS 415314 (reporting that New York City complied with the subpoena); Conor McCormick-Cavanagh, Denver Won’t Appeal Judge’s Ruling in Fight Against ICE, Westword (May 7, 2020), https://www.westword.com/news/ice-wins-round-in-legal-fight-with-denver-11705038 [https://perma.cc/NC94-76DB] (similar for Denver).[/footnote] Though brief, this battle had enormous implications. For the immigrants caught in the crossfire, it meant exposure to some of the harshest penalties in our legal system: arrest, detention, and exile from their families and homes.[footnote]See, e.g., McCormick-Cavanagh, supra note 4 (reporting that ICE planned to use the information subpoenaed to deport the noncitizen targets); Conrad Wilson, Oregon State Police, Hillsboro, Clackamas County Sheriff to Defy ICE Subpoenas, The Bulletin (Mar. 8, 2020), https://www.bendbulletin.com/localstate/oregon-state-police-hillsboro-clackamas-county-sheriff-to-defy-ice-subpoenas/article_ce3e6e54-616f-11ea-98a7-13a93a34fe6d.html [https://perma.cc/Y9FD-9J83] (last updated Apr. 13, 2021) (reporting that ICE sought the subpoenaed information to commence removal proceedings against the noncitizen targets).[/footnote] For cities and states, it exposed a major chink in the armor of local sovereignty, one that could undermine subfederal policy on policing, privacy, and control of local resources.[footnote]See Bridget A. Fahey, Data Federalism, 135 Harv. L. Rev. 1007, 1010–12, 1028 (2022) (observing this type of connection between federal subpoenas and threats to local sovereignty); Robert A. Mikos, Can the States Keep Secrets From the Federal Government?, 161 U. Pa. L. Rev. 103, 154 (2012) (same).[/footnote] And, for the effort to disentangle local government from immigration enforcement, it landed a trenchant blow. It showed how these subpoenas could jeopardize one of the most powerful immigrant-protective movements of the twenty-first century[footnote]Anti-immigrant groups saw this potential, touting immigration subpoenas as the “key to unlock[ing] sanctuary jurisdictions” and forc[ing] hundreds of localities nationwide to help ICE arrest and detain. David Jaroslav, Opinion, ICE Should Use Subpoenas as a Key to Unlock Sanctuary Jurisdictions, The Hill (July 10, 2020), https://thehill.com/opinion/immigration/506684-ice-should-use-subpoenas-as-a-key-to-unlock-sanctuary-jurisdictions/ [https://perma.cc/SRH3-3K54].[/footnote]: the sanctuary policies that prevent state and local actors from providing confidential information and other resources to facilitate federal immigration enforcement.[footnote]The term “sanctuary” is generally used to refer to laws and policies that “prohibit[] the use of subfederal resources to enforce immigration laws,” often by barring state and local officers from arresting and detaining for ICE. Huyen Pham & Pham Hoang Van, Subfederal Immigration Regulation and the Trump Effect, 94 N.Y.U. L. Rev. 125, 130–34, 154, 162 (2019). Although not the focus of this Article, no discussion of the contemporary sanctuary movement’s power would be complete without recognition of the role that community-based organizations and impacted people have played in the adoption of these laws and policies. See, e.g., John Washington, Another Way to Keep Families Together: Join the New Sanctuary Movement, The Nation (June 28, 2018), https://www.thenation.com/article/archive/another-way-keep-families-together-join-new-sanctuary-movement/ [https://perma.cc/L62Q-HRBG] (discussing the role of community-based organizations in advocating for this legislation).[/footnote] In other words, the immigration subpoena offensive worked as intended—and ICE suggested that this was only the beginning and that it might start using this tactic “much more broadly.”[footnote]Adam Shaw, ICE Subpoenas NY for Info on Illegal Immigrant Accused of Murder, as Sanctuary City Fight Escalates, Fox News (Jan. 18, 2020), https://www.foxnews.com/politics/ice-subpoenas-new-york-sanctuary-city-fight [https://perma.cc/6TZN-3ZFW] (internal quotation marks omitted) (quoting former Acting Director of ICE Matthew Albence); see also Long, Immigration Subpoenas, supra note 1 (referring to comments by the deputy executive associate director of ICE’s Enforcement and Removal Operations).[/footnote] But has it? And how else does ICE use these administrative subpoenas—issued without judicial sign-off, active litigation, or even probable cause—to demand that recipients provide confidential records, testify against others, or present themselves for interrogation? The problem—perhaps the biggest takeaway from this episode—is that no one knows. In short, this episode revealed major, unanswered questions about when, how, and with what constraints the massive immigration enforcement agency uses its subpoena power more broadly. These questions are particularly pronounced because the immigration subpoena regime has long operated in darkness.[footnote]This Article focuses on “immigration subpoenas,” by which it means subpoenas issued by the Enforcement and Removal Operations (ERO) subcomponent of ICE, which is responsible for civil immigration enforcement in the nation’s interior. See Memorandum from John Morton, Assistant Sec’y, ICE, to All ICE Emps. 1 (June 9, 2010), https://www.washingtonpost.com/wp-srv/hp/ssi/wpc/MortonMessage.pdf [https://perma.cc/4KUM-5AVN] [hereinafter Morton, ERO Memorandum] (announcing the creation of the Enforcement and Removal Operations directorate and outlining its functions); see also Stipulation and [Proposed] Order at 2, Nash v. Immigr. & Customs Enf’t, Nos. 21-cv-04299 & 23-cv-06994 (S.D.N.Y. filed Nov. 18, 2024), ECF No. 60 [hereinafter Stipulation and Proposed Order] (confirming that the majority of subpoenas that the Enforcement and Removal Operations subcomponent issues are for civil immigration purposes). It does not cover subpoenas issued by other ICE subcomponents primarily focused on different types of enforcement, immigration judges (IJs) adjudicating removal proceedings, or DHS officers adjudicating naturalization applications.[/footnote] Although the immigration subpoena power is over a century old,[footnote]See infra section I.A.[/footnote] information about when and how the government uses it is virtually nonexistent in the public domain.[footnote]Just Futures Law and Boston University’s immigration clinic have done critical work to expose the issuance of administrative subpoenas to technology companies, primarily by ICE’s Homeland Security Investigations component (HSI). See Just Futures L. & Bos. Univ. Sch. of L., ICE Issued Hundreds of Requests to Major Tech Companies for Personal Data 1 (n.d.), https://pigeon-orb-9y46.squarespace.com/s/Final_JFL-ICE-admin-subpoenas-factsheet.pdf [https://perma.cc/D4NZ-J299] (reflecting subpoenas issued by HSI); Just Futures L., First Production from ICE_Redacted, Document Cloud (July 28, 2023), https://www.documentcloud.org/documents/23889930-first-production-from-ice_redacted (on file with the Columbia Law Review ); Just Futures L., First Production from ICE_Spreadsheet of Administrative Subpoenas Issued to Certain Tech Companies, Document Cloud (July 28, 2023), https://www.documentcloud.org/documents/23893291-first-production-from-ice_spreadsheet-of-administrative-subpoenas-issued-to-certain-tech-companies-1 (on file with the Columbia Law Review ); Just Futures L., Second Production From ICE_Redacted, Document Cloud (July 28, 2023), https://www.documentcloud.org/documents/23921560-boston-u-v-ice_second-production_redacted (on file with the Columbia Law Review ). This information is extremely valuable but distinct because HSI focuses on criminal and national security–related enforcement, not civil immigration enforcement. See Morton, ERO Memorandum, supra note 10, at 1. Innovation Law Lab also did important work related to immigration subpoenas in the wake of the 2020 initiative. See Toolkit for Resisting ICE Administrative Subpoenas, Innovation L. Lab, https://innovationlawlab.org/toolkit/toolkit-resisting-ice-administrative-subpoenas/ [https://perma.cc/7Z94-VSQJ] (last visited Jan. 17, 2025).[/footnote] Unlike the typical subpoena issued by a federal court,[footnote]See, e.g., Fed. R. Civ. P. 45(a)(4) (requiring the notification of all parties prior to service of pretrial subpoenas seeking, inter alia, records, inspections, and tangible objects). Though a full study is beyond the scope of this Article, this is also true for at least some administrative adjudication. See 8 C.F.R. § 1003.35 (2024) (permitting IJs to issue administrative subpoenas of removal adjudications); Exec. Off. for Immigr. Rev., Immigration Court Practice Manual § 3.2, https://www.justice.gov/media/1239281/dl?inline [https://perma.cc/YP48-76ZF] (last updated Aug. 12, 2024) (requiring parties seeking such a subpoena in removal adjudications to file a motion and serve it upon opposing counsel).[/footnote] these “investigative” subpoenas issued by ICE are not part of public, ongoing legal proceedings, nor are they formally connected to any filed charge or complaint. And, since ICE may issue these subpoenas to obtain information about almost any matter related to the immigration domain without a reason to even suspect that a legal violation has occurred,[footnote]See infra Part I.[/footnote] these subpoenas may never make it into any public record or onto any litigant’s radar. Perhaps for these reasons, immigration subpoenas have largely escaped both the legal battles raging over other ICE tactics and the scrutiny of scholars, reporters, and courts. To be sure, scholars such as Professors Medha D. Makhlouf and Bridget Fahey have published important work identifying some of the concerns that ICE’s subpoenas and other information-gathering tools could raise.[footnote]See Fahey, supra note 6, at 1028, 1052–53 (describing ICE’s efforts to obtain information from local governments); Medha D. Makhlouf, Health Care Sanctuaries, 20 Yale J. Health Pol’y, L. & Ethics 1, 30–32 (2021) (examining immigration surveillance in the context of health care and arguing, inter alia, that prior ICE policy did not sufficiently limit its use of administrative subpoenas and other information requests in that space). Others have noted some of the legal questions these tools might create. See, e.g., Aleksandar Dukic, Stephanie Gold & Gregory Lisa, Key Legal Considerations Relating to “Sanctuary Campus” Policies and Practices, 44 J. Coll. & Univ. L. 23, 34 (2018) (questioning the legality of mandates requiring that educational institutions turn over students’ information); Lisa A. DiPoala, Note, Immigration Reform and Control Act of 1986: A License for Warrantless Searches, 40 Syracuse L. Rev. 817, 829–33 (1989) (arguing that the employer-investigation provisions of Immigration Reform and Control Act, including different administrative subpoena provisions, violate the Fourth Amendment); Kathryn Perrotta, Case Comment, Immigration Law—Third-Party Subpoenas—Can the INS Find John Doe?, Peters v. United States, 853 F.2d 692 (9th Cir. 1988), 13 Suffolk Transnat’l L.J. 866, 867–76 (1990) (analyzing a case related to group subpoenas).[/footnote] But no scholar has examined the immigration subpoena regime as a whole or how the agency wields this power on the ground. Indeed, the government itself lacks the fundamental information necessary to study this regime because ICE has no functional system for even tracking—much less analyzing—subpoenas’ use in the immigration realm.[footnote]See infra section II.A.[/footnote] Thus, despite in-depth examinations of other aspects of immigration enforcement[footnote]To note some of the many shining examples: Scholars have examined aspects of immigration enforcement’s relationship with state and local law enforcement. E.g., Adam B. Cox & Thomas J. Miles, Policing Immigration, 80 U. Chi. L. Rev. 87 (2013); Eisha Jain, Jailhouse Immigration Screening, 70 Duke L.J. 1703 (2021); Michael Kagan, Immigration Law’s Looming Fourth Amendment Problem, 104 Geo. L.J. 125 (2015); Pham & Van, supra note 8. Others have looked at this issue through the lens of enforcement at the border. E.g., S. Deborah Kang, The INS on the Line: Making Immigration Law on the U.S.-Mexico Border, 1917–1954 (2017); Eunice Lee, Regulating the Border, 79 Md. L. Rev. 374 (2020). Others have considered its internal structures and governance. E.g., Fatma Marouf, Regional Immigration Enforcement, 99 Wash. U. L. Rev. 1593 (2022); Shalini Bhargava Ray, Abdication Through Enforcement, 96 Ind. L.J. 1325 (2021). Others have argued for rethinking it entirely. E.g., Peter L. Markowitz, Rethinking Immigration Enforcement, 73 Fla. L. Rev. 1033 (2021); Emily Ryo, Less Enforcement, More Compliance: Rethinking Unauthorized Migration, 62 UCLA L. Rev. 622 (2015). And still others have examined its uncomfortably close relationship with administrative adjudication in the immigration context. E.g., Ingrid Eagly & Steven Shafer, Detained Immigration Courts, 110 Va. L. Rev. 691 (2024); Mary Holper, The Fourth Amendment Implications of “U.S. Imitation Judges”, 104 Minn. L. Rev. 1275 (2020).[/footnote] and administrative subpoenas in other contexts,[footnote]Given the ubiquity of administrative subpoenas in contemporary practice, they come up in many excellent articles. For some important recent examples, see Aram A. Gavoor & Steven A. Platt, Administrative Investigations, 97 Ind. L.J. 421 (2022) [hereinafter Gavoor & Platt, Administrative Investigations] (providing a first-of-its-kind survey of the law of administrative investigations); Jennifer D. Oliva, Prescription-Drug Policing: The Right to Health-Information Privacy Pre- and Post- Carpenter , 69 Duke L.J. 775, 795 (2020) (arguing that, in light of recent Supreme Court precedent, administrative subpoenas for certain health information violate patients’ Fourth Amendment privacy rights). For articles exploring the federalism implications of administrative subpoenas among other federal information-gathering tools, see, e.g., Fahey, supra note 6, at 1028; Mikos, supra note 6, at 116–18.[/footnote] the immigration subpoena regime remains unstudied, largely unchallenged, and, for many, entirely unknown. The need to understand this regime has never been greater. While local governments have long played an important role in federal immigration enforcement in the nation’s interior,[footnote]See Cox & Miles, supra note 17, at 87, 92–99 (discussing the history of these partnerships and their dramatic expansion starting in 2008).[/footnote] the increased resistance to state and municipal collaboration has changed the enforcement landscape.[footnote]See Lindsay Nash, Deportation Arrest Warrants, 73 Stan. L. Rev. 433, 460–61 (2021) [hereinafter Nash, Warrants] (discussing local declinations to participate in immigration enforcement).[/footnote] Specifically, because so many local law enforcement agencies now refuse to arrest and detain for immigration purposes, ICE relies even more heavily on information gathered, generated, and retained by local governments.[footnote]See Fahey, supra note 6, at 1028, 1052–53 (describing a range of ways that ICE attempts to obtain and use data held by state and local government entities). In this sense, interior immigration enforcement is different than enforcement at the border, which often functions through border surveillance, observation, and arrests. See, e.g., Dan Whitcomb & Ted Hesson, Nine Migrants Die Trying to Cross Rio Grande River Into United States, Reuters (Sept. 3, 2022), https://www.reuters.com/world/us/eight-migrants-die-trying-cross-rio-grande-river-into-united-states-2022-09-03/ [https://perma.cc/QAQ4-VCAY].[/footnote] As the federal fury over sanctuary cities’ refusal to provide this information shows, the interior immigration enforcement regime depends on this information at every stage, from identifying potential targets to executing arrests to effecting deportations.[footnote]See supra notes 2–3 and accompanying text; see also Pham & Van, supra note 8, at 128, 148 (describing how the Trump Administration, in particular, “relentlessly extracted participation from . . . so-called ‘sanctuary cities,’ or jurisdictions that refuse to fully cooperate with federal immigration enforcement”).[/footnote] While ICE has publicly focused on obtaining this information from police, jailors, and probation departments,[footnote]See supra notes 2–3 and accompanying text.[/footnote] its reach into local interactions does not end there. Because immigration arrests and prosecutions can implicate virtually every aspect of people’s lives—including spouses’ employment, children’s schooling, and medical care—so too can ICE’s investigative powers.[footnote]See infra section I.B.[/footnote] In this way, these investigations can extend beyond the individuals under investigation to anyone—including U.S. citizens—with whom they associate.[footnote]See infra section I.B.[/footnote] Thus, knowing how ICE uses its subpoena power to obtain this information is critical to understanding the extent to which local entities remain complicit in immigration enforcement, the practical and legal implications of the immigration subpoena regime, and the efficacy of constraints on this power in the civil immigration realm. This Article begins to answer these questions, providing the first comprehensive account of the immigration subpoena power. Drawing on previously undisclosed agency records reflecting thousands of subpoenas used in investigations nationwide,[footnote]The author obtained these data and other records through Freedom of Information Act (FOIA) requests—and ultimately two lawsuits. See infra section II.A. This Article refers to the author’s dataset as “Combined FOIA Data.” This dataset and the underlying records are on file with the Columbia Law Review and available on request.[/footnote] it shows how the agency wields a power initially created to facilitate racial exclusion at the border to reach deep into some of the most intimate areas of people’s lives, including schools, social services agencies, and other historically protected domains.[footnote]See infra sections II.A–.B.1. Although ICE and its predecessors are agency subcomponents, this Article refers to them as “agencies” for readability and because the immigration enforcement subcomponent’s name has changed throughout history.[/footnote] Indeed, it shows that the agency has long used these subpoenas to obtain children’s records from schools, compel sensitive records from local agencies, surveil people’s movements, and more.[footnote]See infra section I.B.[/footnote] This Article also reveals the significant federalism implications of ICE’s subpoena practice. It demonstrates that, contrary to the agency’s own representations,[footnote]See, e.g., Kight, supra note 2 (“Former ICE director Thomas Homan told Axios that during his 34 years working in immigration enforcement, DHS never had to subpoena another law enforcement agency.”); Press Release, ICE, ICE Issues Subpoenas to Obtain Information Refused Under Connecticut’s Sanctuary Policies (Feb. 13, 2020), https://www.ice.gov/news/releases/ice-issues-subpoenas-obtain-information-refused-under-connecticuts-sanctuary-policies [https://perma.cc/A5CE-V22T] (claiming that ICE has not “historically needed to use its lawful authority to issue . . . subpoenas” against law enforcement agencies).[/footnote] ICE regularly used these subpoenas to compel state and local law enforcement to participate in federal immigration enforcement well before Trump and has continued doing so to the present day.[footnote]See infra section II.B.2.[/footnote] But it also shows that ICE’s practice of subpoenaing states and localities that refuse to participate in federal immigration enforcement has recently transformed and become embedded in ICE policy, creating a formal structure for waging an intersovereign subpoena battle that rages on, largely in secret, today.[footnote]See infra sections II.B.2, II.D.[/footnote] This Article not only shows where the agency uses this power but also provides troubling new insight into how. It reveals that the agency has sought to broaden its subpoena power to make prospective demands for information and real-time surveillance, attempted to foist investigatory functions upon subfederal government entities, and tried to obscure its subpoena practices by imposing all-encompassing, indefinite—and unlawful—gag orders upon subpoena recipients.[footnote]See infra sections II.B.2–.B.4.[/footnote] Ultimately, this study paints a troubling picture of how ICE uses this power to force subfederal governments and others to contribute to immigration arrests and detention. In addition to this descriptive contribution, this Article makes two important analytical claims. First, it argues that this examination exposes patterns of unauthorized and unconstitutional conduct that permeate the immigration subpoena regime.[footnote]See infra Part III.[/footnote] It shows how ICE’s use of immigration subpoenas implicates a host of constitutional questions—related to federalism, privacy, and free speech—that have gone unanswered and, in some respects, entirely unexplored. And it contends that this study helps raise and even resolve some of these questions by demonstrating the ways that ICE’s practices impinge on core constitutional rights and constraints. These findings are important not only to identify these issues but also because they open three paths to agency restraint: They give rise to viable legal challenges in an area where judicial review is notoriously weak;[footnote]See, e.g., United States v. Morton Salt Co., 338 U.S. 632, 652 (1950) (“[I]t is sufficient if the inquiry is within the authority of the agency, the demand is not too indefinite and the information sought is reasonably relevant.”); Okla. Press Publ’g Co. v. Walling, 327 U.S. 186, 208 (1946) (concluding that the Fourth Amendment guards “at most” against “too much indefiniteness or breadth” in subpoenas for the production of records); Gavoor & Platt, Administrative Investigations, supra note 18, at 423 (describing the “highly deferential standard [of review] that rarely results in the quashing of agency investigative action or the exercise of agency self-restraint”); Diego A. Zambrano, Discovery as Regulation, 119 Mich. L. Rev. 71, 106 (2020) (“Regulated entities almost never succeed in challenging an administrative subpoena on scope, burden, or other reasons.”).[/footnote] raise troubling policy questions that, in other contexts, have prompted subregulatory self-constraint;[footnote]See, e.g., FBI, Termination Procedures for National Security Letter Nondisclosure Requirement 1 (2015), https://www.fbi.gov/file-repository/nsl-ndp-procedures.pdf [https://perma.cc/59HH-QWL9] (limiting use of agency-issued gag orders in national security–related compulsory process); see also Memorandum from Merrick Garland, Att’y Gen., DOJ, to the Deputy Att’y Gen., the Assoc. Att’y Gen., Heads of Dep’t Components, U.S. Att’ys & Fed. Prosecutors 1 (July 19, 2021), https://www.justice.gov/ag/page/file/1413001/download [https://perma.cc/5SJ2-J5FG] (limiting subpoenas sent to media).[/footnote] and arm the public with information necessary to exert pressure through other means.[footnote]See, e.g., Alan Z. Rozenshtein, Surveillance Intermediaries, 70 Stan. L. Rev. 99, 149–54, 162 (2018) (discussing the role of public pressure in constraining other surveillance regimes).[/footnote] Second, this Article argues that understanding how the immigration subpoena power is implemented has doctrinal and normative implications that transcend the immigration field.[footnote]See infra Part IV.[/footnote] As the first scholarship to date that examines a large set of primary administrative subpoena records—agency-level subpoenas and data[footnote]It seems that the only other scholarship that closely examines agency-level subpoena practices is the fascinating work of scholars who have examined subpoenas issued to news media but done so through interviews with and surveys of media recipients. See, e.g., Vince Blasi, The Newsman’s Privilege: An Empirical Study, 70 Mich. L. Rev. 229, 235–39 (1971); RonNell Andersen Jones, Avalanche or Undue Alarm? An Empirical Study of Subpoenas Received by the News Media, 93 Minn. L. Rev. 585, 620–24 (2008); RonNell Andersen Jones, Media Subpoenas: Impact, Perception, and Legal Protection in the Changing World of American Journalism, 84 Wash. L. Rev. 317, 350–53 (2009). Many scholars have done valuable work on administrative subpoenas based on case law resulting from challenges to these subpoenas. See, e.g., supra notes 6, 18. The vast majority of administrative subpoenas, however, do not wind up in litigation, meaning that judicial decisions reflect an important but small part of the larger administrative subpoena picture.[/footnote]—it offers new insights that apply to administrative subpoena use and investigations more broadly. Specifically, it argues that this ground-level view of agency practice suggests the need to rethink the presumption of administrative regularity and the application of internal administrative law principles in at least some similar contexts. These insights are especially important in considering enforcement regimes that, like ICE’s, impose extraordinarily harsh penalties and bear most heavily on historically marginalized populations who often lack resources and political power. Ultimately, this Article makes the case for greater external constraints and more probing judicial review in the immigration subpoena regime and beyond. The Article proceeds in four parts. Part I explores why the immigration subpoena power was created and what that power looks like today. It traces the history of the immigration subpoena from its origins as a mechanism for racial exclusion to the broad, uncanalized power of compulsory information-sharing and surveillance it has become. And it shows why, despite the general acceptance of administrative subpoenas in other regimes, the immigration subpoena power raises distinct and urgent questions—ones that demand a closer look at how it functions in practice. Part II illuminates the current immigration subpoena regime. It uses new agency data and records obtained under the Freedom of Information Act to show how ICE uses this authority in the nation’s interior. Ultimately, it provides a first-of-its-kind view of how this tool is used in practice and of the unlawful conduct that permeates the immigration subpoena regime. Part III explores the constitutional and doctrinal implications. It argues that the findings in this Article raise a number of serious constitutional questions, help resolve some of those questions, and justify important doctrinal and procedural changes. Part IV argues that these findings offer valuable lessons about administrative subpoena doctrine and practice that transcend the immigration regime.

FOIA

THE IMMIGRATION SUBPOENA POWER

BEYOND REQUEST-AND-RESPOND: WHY DATA ACCESS WILL BE INSUFFICIENT TO TAME BIG TECH