Congress has until Feb. 13, 2026 to pass the Department of Homeland Security’s fiscal year 2026 appropriations bill. After federal immigration agents shot and killed Renee Good and Alex Pretti in Minneapolis in January, Senate Democrats blocked the DHS appropriations bill and secured a two-week window to negotiate reforms to how Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) conduct their operations. Democratic House and Senate leaders Hakeem Jeffries and Chuck Schumer have since issued a 10-point list of demands calling for judicial warrants, body cameras, a mask ban, sensitive location protections, use-of-force standards, and state and local oversight.
In this round-up, experts identify additional specific reforms Congress could enact and, critically, how to enact them.
Samantha Trepel, former Deputy Associate Attorney General at the U.S. Department of Justice, and Special Litigation Counsel in the DOJ’s Civil Rights Division:
Create an Independent Force Review Board
A use of force review board is a mechanism that can increase a law enforcement agency’s accountability and transparency. Review boards convene experts to examine significant uses of force, following an investigation to collect the facts. A review board’s goal is typically to determine whether a use of force was consistent with an agency’s policies. The process can result in recommendations to revise policies, increase training, or make other improvements. CBP has, for the past decade, convened a National Use of Force Review Board to review serious uses of force by its agents. Its board members include senior officials from DHS and, traditionally, an attorney from the U.S. Department of Justice’s Civil Rights Division. ICE has no comparable review process.
After DHS agents shot and killed Renee Good and Alex Pretti, the DHS Secretary Kristi Noem and other administration officials prejudged the incidents before any investigations could begin. Their statements, which contradicted known facts, indicate that a review board composed of DHS leaders lacks the independence needed to examine significant uses of force and make necessary changes to save lives moving forward. A review board that could bring true accountability and transparency would sit outside the Department and its chain of command and be composed of subject matter and civil rights experts not beholden to the Secretary.
Before a review board can analyze a use of force incident, that incident must be investigated. CBP’s review board relied on its Office of Professional Responsibility (OPR) to first conduct internal investigations, which it did with increasing thoroughness and professionalism in recent years. A reformulated, independent board could also rely on an internal investigation office, if it, like CBP’s OPR, is well-resourced and permitted to operate with investigative independence—something that could be verified by an independent monitor to ensure the quality of the investigation. Both credible internal investigations and an independent review process are needed to repair the public trust that has been broken.
Amend 42 U.S.C. § 1983
There are multiple routes to accountability when a state or local law enforcement officer uses excessive force in violation of a person’s constitutional rights. The federal government can prosecute the officer if they acted with the legally required level of intent, using the federal deprivation of rights statute, 18 U.S.C. § 242. The victim can also sue, seeking monetary damages, under the civil counterpart of that statute, 42 U.S.C. § 1983. But while the criminal statute permits federal prosecutors to charge federal agents, Section 1983 does not permit private individuals to sue those same agents. The Supreme Court created a judicial remedy for this oversight in a case known as Bivens v. Six Unknown Federal Narcotics Agents in 1971. But since then, the Court has narrowed the circumstances in which federal agents can be held civilly liable under Bivens. States can prosecute officers who use excessive force for violating state criminal laws, such as assault or murder, but state prosecutors face legal hurdles, such as Supremacy Clause immunity, when bringing charges against federal agents for acts committed in the course of their official duties.
Congress should close this loophole, placing federal officers on equal footing with state officers when it comes to civil liability for constitutional violations. To do so, Congress should amend Section 1983 to include the conduct of federal officers by mirroring Section 242’s language. That way, an individual who acts “under color of any law,”—state or federal—could be held civilly accountable for violating a person’s constitutional rights. Such a path to accountability is all the more important in the face of the current administration’s failure to investigate criminal civil rights violations by federal agents.
Enhance Access to ICE Detention Facilities
While violent tactics used by immigration agents during street-level enforcement operations are visible and often recorded on video by bystanders with phones, the conditions ICE detainees are subjected to inside detention facilities generally remain hidden from view. Yet reporting indicates that many detainees are subjected to inhumane, overcrowded, and dangerous conditions at these facilities—conditions that may violate the Constitution. Last year, 32 people died in ICE custody, the highest number of in-custody deaths in at least 20 years. The El Paso County medical examiner’s office recently ruled one of those deaths a homicide—finding that Geraldo Lunas Campos, a detainee at Camp East Montana in El Paso, Texas had died from “asphyxia due to neck and torso compression,” contradicting ICE’s initial accounts. Meanwhile, members of Congress, attempting to conduct oversight visits of these facilities, have been repeatedly denied entry. After several members sued to gain access—and prevailed—DHS Secretary Noem then reinstated a policy requiring lawmakers to provide seven days’ notice prior to inspection visits.
Members of Congress should be permitted to conduct unannounced inspections of any facility where ICE is detaining people—including those run by private prison companies—as lawmakers have the right and the responsibility to oversee how congressionally appropriated funds are spent. But where there are allegations that people’s health and safety are endangered by unconstitutional conditions of confinement, access for lawmakers alone is insufficient. Congress should mandate unannounced access for both lawmakers and independent monitors to act on their behalf. These monitors should be authorized to conduct interviews of staff and detainees, and review and collect video and documents from the facilities to determine whether conditions fall below constitutional standards. Where appropriate, they should refer potential criminal violations to the FBI for investigation.
Margo Schlanger, Wade H. and Dores M. McCree Collegiate Professor of Law, University of Michigan Law School, former DHS Officer for Civil Rights and Civil Liberties:
The reforms proposed by congressional Democrats and detailed by the other contributors to this survey will not matter unless Congress makes them enforceable. After all, DHS already has rules governing force and policies against the detention and deportation of citizens—yet tragedies are multiplying. What is needed is not just the substantive reforms, but a set of accountability structures that encourages DHS officials to respect them, uncovers violations, and offers remedies for victims. This includes, at a minimum:
Required Reporting
All ICE and Border Patrol officers should be required to report on key activities—to file a form (from their phones) on each and every use of force (including brandishing or pointing a firearm), investigatory stop, and search. And supervisors should review those reports to ensure the activity was lawful and in-policy. Omitting a report or filing a false report would be misconduct. This kind of supervision is routine practice in well-run law enforcement agencies. (See here, for example, for the agreement on use-of-force reporting that the Biden Administration negotiated with Minneapolis, later abandoned by the Trump Administration.)
Access to Classwide Relief
In addition to restoring the possibility of retrospective relief (noted above), Congress should modify the Immigration and Nationality Act (INA), 8 U.S.C. § 1252(f)(1), to likewise restore access to prospective, injunctive class actions. DHS has been implementing incredibly aggressive legal reinterpretations of longstanding rules—many patently unlawful. This includes its assertion that nearly everyone subject to deportation proceedings is subject to mandatory detention, without the possibility of bond. Thousands of people detained under this illegal guidance have filed individual habeas actions, and been granted relief requiring the government to give them a bond hearing where they can demonstrate that they pose no public safety or flight risk. Even then, ICE has been unwilling or unable to comply with these orders, violating them en masse. And no doubt there are thousands more people without the ability or means to bring individual cases, who therefore remain unlawfully detained. Individual litigation is failing to protect the rule of law; meritorious class actions can instead win comprehensive, enforceable compliance plans. But in 2022, the Supreme Court barred class lawsuits to enforce rights under the INA, reading a provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) to prohibit relief outside of single individual cases.
Congress should repeal the provision, 8 U.S.C. § 1252(f)(1). In an abundance of caution, it should substitute:
With respect to part IV of this subchapter, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, suits to enforce regulatory, statutory, or constitutional requirements may be brought by individuals proceeding alone or in groups, as an association of such individuals, or as a class under Federal Rule of Civil Procedure 23.
Clarifying Scope of Immunity for State Criminal Prosecution
A federal badge, hidden or displayed, should not authorize misconduct. But Stephen Miller, for example, has claimed on Fox News that ICE officers enjoy blanket “federal immunity in the conduct of your duties.” (DHS shared the clip with its employees.) This is a dangerous overread of the scope of federal officers’ immunity from state criminal prosecution. True, under the federal officer removal statute, 28 U.S.C. § 1442, if a federal official commits a state-law crime while carrying out federal duties, any resulting local or state prosecution is moved to federal court. It’s still conducted by the local or state prosecutor, but now before a federal judge. Since it’s a state-law prosecution, the President has no applicable pardon power, but under the 1890 Supreme Court precedent In re Neagle, officers are immune if the charged conduct was necessary to carry out federal duties. Otherwise, states could too easily thwart federal official conduct. But immunity’s scope remains contested. Congress should resolve the contest by specifying that federal officers are immune from state-law criminal prosecution only when their conduct is both objectively reasonable and necessary to fulfill lawful federal duties—and that unconstitutional conduct is never reasonable.
Required Checks on Appropriations
Congress should specify that no appropriated funds may be spent on any activity that violates the enacted reforms—and should make inescapably clear that this prohibition applies not only to funds appropriated by the FY2026 bill, but also to funds provided by any prior or future statute.
This language is essential. Last year’s One Big Beautiful Bill Act (OBBBA) gave DHS approximately $190 billion outside the annual appropriations process, including $170 billion for immigration enforcement—$75 billion for ICE alone. Without a cross-referencing prohibition, ICE could simply fund prohibited activities from its OBBBA accounts, smashing through every guardrail in the appropriations bill.
External Auditing for Noncompliance
Congress should require DHS’s component agencies to certify to Congress that the enacted reforms have been followed—and then should assign the Government Accountability Office (GAO) to review agency operations and verify those certifications. Self-reporting with external oversight is the minimum baseline for any serious compliance regime. Congress should also specify what happens when violations are found. If GAO identifies systemic noncompliance, responsive funding rescission bills should follow automatically and according to fast-track procedures, not as a matter of future discretion but as a consequence written into the statute at the time of enactment.
Margy O’Herron, Senior Fellow in the Brennan Center’s Liberty and National Security Program, former Senior Policy Advisor for Immigration at the Executive Office of the President of the United States; Rachel Levinson-Waldman, Director of the Brennan Center’s Liberty and National Security Program; Hannah James, Counsel in the Brennan Center for Justice’s Liberty and National Security Program:
There are a few common-sense reforms that Congress could incorporate into a DHS funding bill in addition to those proposed by Jeffries and Schumer to reinstate and strengthen oversight over the department, ensure protections for core First and Fourth Amendment rights, curb violent and unconstitutional actions by federal agents, and hold them accountable for overreach. This is not a comprehensive list, and these are not the only solutions, but they would provide a measure of accountability and protections currently missing. Congress should also take back the blank check it provided to DHS.
Reinstate and Strengthen Oversight Mechanisms and Accountability
While receiving record funding for immigration enforcement, DHS has effectively gutted oversight offices. The Office for Civil Rights and Civil Liberties (CRCL), Office of the Immigration Detention Ombudsman, and the Office of the Citizenship and Immigration Services Ombudsman are no longer adequately performing their oversight functions, in light of the decimation of their staff. DHS has cut nearly all line employees who annually received hundreds of complaints of civil rights abuses and conditions in detention centers as well as about problems in their applications for changes of immigration status, investigated those complaints, and, in some cases, made changes on the ground in real time. Congress should require the administration to reinstate those offices at full scale.
In addition, as the Brennan Center has previously written, Congress should substantially strengthen CRCL’s influence and oversight functions, including by expressly codifying its authorities, requiring annual public reporting, and expanding and funding programs to hire and retain staff with technological expertise. Congress should also explicitly condition DHS funding on compliance by the department and its components with oversight and transparency obligations.
Congress must also strengthen remedies available to members of the public for abuse by federal agents, including by passing a law giving individuals the right to sue federal officers in federal court for violations of constitutional rights.
One option would be for Congress to pass the Bivens Act, which would allow individuals to recover damages for constitutional violations committed against them by federal officials, including U.S. Immigration and Customs Enforcement (ICE) and Border Patrol. The bill would close the existing gap in 42 U.S.C. § 1983, as Samantha Trepel recommends above, and provide recourse to victims whether the harm is perpetrated by a local, state, or federal official.
Prevent Data Collection on Protestors
ICE is spending millions of dollars on tools that allow it to track and collect information about Americans exercising their constitutionally protected right to observe federal officials and protest government policies. Data collection technologies are also being used to target immigrants in service of the administration’s goal of mass deportation. These tools appear to be supercharging the administration’s efforts to portray lawful protesters and even victims of violence at the hands of government agents as “domestic terrorists.”
There is little information publicly available about some of the most invasive technologies, such as a real-time facial recognition app that is being used to scan people on the street without their consent and determine whether they are citizens, not always accurately. Facial recognition capabilities are also evidently being deployed to record information about observers and protesters – many of whom are citizens – also without their consent. In addition to their profound privacy implications, these uses violate a policy issued by the department in 2023. As the Privacy and Civil Liberties Oversight Board (PCLOB) has observed, however, the policy has been removed from the department’s website, with no indication about whether it or any other policy is in effect, undermining the ability of oversight agencies, Congress, and the public to “know what is allowed and what is not.”
At a minimum, Congress should prevent both ICE and CBP from using their funding to purchase, deploy, or repurpose technologies to collect or maintain information about people engaging in First Amendment-protected activities such as observing or recording federal officers or protesting government policies; indeed, doing so should already be prohibited by the Privacy Act. Congress should also demand that the department publish easily accessible, searchable, and comprehensive information about all of the technologies it is using in support of immigration enforcement and in its targeting of protestors.
Fourth Amendment Reforms
In an internal memo made public through a whistleblower report, the Acting Director of ICE instructed officers that they are permitted to enter homes to conduct immigration arrests without judicial authorization. According to the memo, officers may rely on a document DHS refers to as an “administrative warrant.” But that document isn’t a judicial warrant at all; instead, it is simply a piece of paper issued by DHS itself – the same agency that serves as police and prosecutor. Allowing entry into homes without judicial oversight is not only a departure from longstanding DHS policy, but also contrary to core Fourth Amendment rights held by both citizens and noncitizens within the United States.
It has long been understood that under the Fourth Amendment law enforcement generally must have a judicial warrant to enter a home, absent consent or exigent circumstances. Judicial authorization is not merely a constitutional formality; it serves as an important safeguard for every household. Evaluation of the facts by a neutral magistrate helps ensure that officers do not, for example, enter the wrong homes (as immigration officers have done recently in Portland and Minnesota) or enter for the wrong reasons. ICE’s recent pattern of unlawful behavior and aggressive enforcement tactics makes patently clear the necessity of judicial checks on law enforcement.
Consistent with the Fourth Amendment, Congress should prohibit ICE from entering homes using administrative warrants issued by the executive branch and require ICE to obtain a judicial warrant to enter homes in the absence of consent or exigent circumstances.
Funding Reforms
Instead of giving DHS additional funding for immigration enforcement, Congress should pull back the $170 billion it gave the agency last July on top of its fiscal year 2025 budget, swelling its account for conducting border and interior immigration enforcement. According to the Bipartisan Policy Center, what Congress gave, it can take away – so long as it claws the money back before the funding expires on September 30, 2029. And of course, the longer it waits, the more taxpayer money ICE and CBP will have spent. The sums are staggering: close to half the July windfall was for ICE, which was allocated $75 billion, including $45 billion to detain more immigrants. The $75 billion was on top of the $10 billion already appropriated to ICE for 2025, exceeding the entire military budget of France. The July funding bill also added $65 billion to CBP’s $20 billion budget for 2025, giving CBP more than double the combined funding for the entire militaries of Canada and Mexico, the United States’s two closest neighbors.
According to the government’s own data, ICE and CBP have If the extraordinary sums DHS has been handed are left in the department’s account, it will give the agency the ability to replicate the scenes we have seen in Minneapolis in cities and states throughout the country, and Congress will have given up its most powerful tool for holding DHS accountable. Yet in late January, the House approved even more money for the two bodies most in the news for their abuses against both citizens and non-citizens across the United States – an additional $10 billion for operations and support for ICE, an entity that nearly two thirds of Americans say has gone too far, and another $18 billion for CBP.
This is the proposal that is now sitting before the Senate. Instead of cutting those agencies another big check from taxpayer money, Congress should use its constitutional power over spending to pull back the funding it gave DHS in July. When DHS needs additional funding, it can request that money from Congress, giving Congress the ability to fund the agency only if it is acting within the bounds of the law and the Constitution. This is an important opportunity for Congress to flex its muscle as a co-equal branch of government.
FEATURED IMAGE: WASHINGTON, DC – FEBRUARY 04: U.S. House Minority Leader Hakeem Jeffries (D-NY), joined by Senate Minority Leader Chuck Schumer (D-NY) and fellow congressional Democrats, speaks at a press conference on Department of Homeland Security (DHS) funding at the U.S. Capitol on February 04, 2026 in Washington, DC. The Democratic leadership outlined their demands for ICE accountability as Congress debates funding legislation for the DHS ahead of next week’s deadline. (Photo by Kevin Dietsch/Getty Images)
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