Kristi Noem Will Defeat ICE Oversight With Creative Accounting
Maybe giving DHS a $30 billion slush fund was a bad idea.
On January 10, Minnesota Reps. Ilhan Omar, Angie Craig, and Kelly Morrison became the latest members of Congress to be turned away when they attempted to inspect an ICE facility in Minneapolis. After first being allowed inside, they were quickly hustled off the premises by personal edict of DHS Secretary Kristi Noem.
In the wake of the murder of Renee Good and in defiance of federal law and a court order, Noem has now barred members of Congress from inspecting immigration facilities without notice and her personal permission.
She claims to have discovered ONE WEIRD TRICK to exclude Members of Congress from ICE facilities. It’s a transparently bad faith gimmick — and it just might work.
The conflict started last summer when Trump announced his plan to raise the number of beds in immigration facilities from 41,000 to 100,000 to accommodate his deportation dragnet. Private prison groups squealed with glee as they dove into a trough of no-bid contracts, re-opening decrepit facilities that had been shuttered due to lack of demand, and throwing up squalid tents in which to imprison ICE’s victims.
Under § 527 of the 2024 Consolidated Appropriations Act — AKA the budget bill — ICE must allow legislators to inspect “any facility operated by or for the Department of Homeland Security used to detain or otherwise house aliens.” DHS cannot use allocated funds to block access by members of Congress, and those lawmakers don’t have to call first.
This has caused substantial friction between DHS and congressional Democrats. Most notably, the US Attorney’s Office for New Jersey charged Newark Mayor Ras Baraka with trespassing at the ICE facility in his own backyard, only to drop the charges against him and indict Rep. LaMonica McIver for assault.
Clearly DHS would prefer to run what are effectively concentration camps in secret, so in June Noem announced a new policy requiring legislators to request access a week in advance and allowing entry at her sole discretion.
In July, a group of lawmakers led by Rep. Joe Neguse of Colorado sued to block enforcement of the seven-day notice requirement. And on December 17, Judge Jia Cobb in DC enjoined the policy for violating § 527’s ban on using budget funds to exclude legislators from the facilities.
Congress hasn’t passed a budget in two years, but it has enacted a series of continuing resolutions to keep the government funded, most recently in December. Each of those resolutions specifies that additional funds “shall be available to the extent and in the manner” provided in the prior budget, meaning that § 527 still applies.
The Appropriations Bill isn’t the only source of funding for Noem’s goons, though. Congress gave DHS nearly $30 billion under the One Big Beautiful Bill Act for hiring, training, enforcement, and “facility upgrades to support enforcement and removal operations.” Section 527 does not apply to OBBBA funds. But during discovery DHS conceded that it wasn’t using OBBBA funds to run detention facilities, so Judge Cobb barred enforcement of the Noem memo and ordered DHS to let the legislators back in.
Spotting a loophole, Noem issued new guidance on January 8 purporting to reinstate the banned policy, but this time using only OBBBA funds:
ICE must ensure that this policy is implemented and enforced exclusively with money appropriated by the OBBBA. To that end, any time or resources spent conducting activities otherwise subject to Section 527’s limitations must be appropriately logged and funded from OBBBA funding. Given the extent of the funding made available to ICE through the OBBBA, I anticipate that there is more than sufficient funding available for the limited expenses associated with implementing and enforcing these policies.
Translation: We’re going to evade legislative oversight with this bottomless slush fund Congress awarded us.
Of course, money is fungible. Just declaring that it came from one pot and not another — particularly when you’ve been claiming the opposite for months — doesn’t make it so. Rep. Neguse has vowed to appeal immediately.
Rep. Neguse, et al, may argue that the facilities run on regular budget funds, and DHS can’t carve out one specific type of interaction by “logging” it (whatever that means) as funded by OBBBA. Perhaps the plaintiffs will demand court oversight to verify that the funding really is coming from a different pot. Or perhaps the Trump administration will get away with evading Congressional oversight by telling yet another obvious lie and demanding that it be accorded a presumption of regularity it long since frittered away.