Homeland Security Secretary Kristi Noem is facing scrutiny from legal analysts after suggesting Americans should be prepared to “validate their identity” during encounters with federal immigration agents.
Why It Matters
Noem told reporters Thursday that U.S. Immigration and Customs Enforcement (ICE) agents may require some people to “validate their identity” amid ongoing protests over immigration enforcement nationwide.
Demonstrations intensified after the fatal shooting of Renee Nicole Good, a 37-year-old mother, in Minneapolis by an ICE agent. City leaders have said Good was present during an ICE operation as a legal observer—someone who watches and records enforcement activity.
What To Know
Noem was asked about reports that some Americans in Minnesota have been prompted to prove their citizenship. Protesters and observers have reportedly been asked for identification by federal agents, according to social media videos and media reports.
Noem said ICE is carrying out “targeted enforcement” in “every situation.”
“If we are on a target, there may be individuals surrounding that criminal that we may be asking who they are and why they’re there and having them validate their identity,” she added.
Legal analysts said those remarks could collide with constitutional protections.
Paul Gowder, a professor of law at Northwestern University, said the governing standard is “clear,” pointing to the 2004 Supreme Court case Hiibel v. Sixth Judicial District, where the Court ruled law enforcement can compel identification “if, and only if, they have reasonable suspicion of some offense.”
“Peaceful protest, of course, is protected by the First Amendment, and therefore is not grounds for reasonable suspicion of anything,” Gowder said.
He added that immigration enforcement can complicate the analysis because the Supreme Court has suggested race “can be relevant to reasonable suspicion of undocumented status,” though it must be paired with other facts supporting reasonable suspicion of unlawful status.
“None of this provides any support for Secretary Noem’s absurd notion that federal law enforcement may demand proof of citizenship from people present at a protest, regardless of their race. The idea that Americans would have to carry proof of identity is a legacy of some of the worst dictatorships of the 20th century,” Gowder said.
Michael McAuliffe, a former federal prosecutor and ex-elected state attorney, said “details matter” when evaluating ICE contact with a civilian in public.
“The most significant threshold question is whether the person who comes in contact with an ICE agent is being lawfully detained, or the agent reasonably suspects the person of committing a crime, including being unlawfully in the US, or helping someone who is illegally in the country,” he said.
McAuliffe added that U.S. citizens generally have the right to decline to identify themselves when they are not detained or being questioned, but that it is “seldom that simple or clear” in real-world situations—and that Noem’s comments were “less precise” than the law requires.
“Standing near someone who may be illegally in the country is not a crime, and is not––alone––grounds to require someone to identify themselves,” he said. But he noted the legal picture could change if there are additional facts suggesting someone is helping a suspect or obstructing an agent’s efforts.
Former federal prosecutor Shanlon Wu called Noem’s remarks “nonsensically vague,” arguing ICE cannot claim targeted enforcement “in every case” while “admittedly asking bystanders merely because they are in the proximity of the alleged ‘target.’”
Wu said that would violate the Fourth Amendment because “ICE cannot show valid reasons for approaching and stopping the masses of individuals that they ‘target’ to ask for anything including immigration papers.
“The standard must be reasonable and articulable suspicion and it appears that ICE believes racial and ethnic appearance is sufficient to meet that standard. Moreover their tactics make it hard to force them to ever demonstrate that legal pre-requisite,” Wu said.
The Fourth Amendment states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
President Donald Trump issued an executive order upon his return to office saying immigrants must carry identification proving their status. Some critics warned at the time that such a policy could lead to U.S. citizens being detained—particularly those who do not routinely carry identification.
Assistant Homeland Security Secretary Tricia McLaughlin said Noem’s remarks are supported by the Constitution.
“Authority titles USC 1357 and of course reasonable suspicion are protected by the U.S. Constitution,” she said
What People Are Saying
Assistant Homeland Security Secretary Tricia McLaughlin: “Allegations that ICE engages in ‘racial profiling’ are disgusting, reckless and categorically FALSE. This type of garbage is contributing to our officers facing a more than 1300% increase in assaults against them. A person’s immigration status makes them a target for enforcement, not their skin color, race or ethnicity. Law enforcement uses ‘reasonable suspicion’ to make arrests, as allowed under the Fourth Amendment to the U.S. Constitution.”
Gowder: “Moreover, this demand that people carry proof of their right to be out and about on the public streets is a legacy of some of the worst dictatorships of the 20th century. The Soviet Union infamously made people carry around internal passports as a way of controlling their population. Race-based compulsory identification has an even darker history. South Africa’s Pass Laws are a particularly infamous example, which imposed internal passports on black citizens under the apartheid system. Free countries don’t do that.”
Wu: “Americans should be deeply concerned at allowing ICE to conduct itself this way – like the much smaller scale Palmer Raids targeting alleged Communists in 1919/1920 – this kind of action by the government makes all Americans vulnerable as demonstrated by instances of people being detained despite being American citizens and showing valid ID – which the ICE agents seem to feel free to simply dismiss as being “fake.””
Senator Catherine Cortez Masto, Nevada Democrat, on X: “The footage of Americans in Minneapolis being forced to provide proof of their citizenship because of the color of their skin or the language they’re speaking is repugnant. This is what the Supreme Court enabled when they allowed the Trump Admin. to pursue racial profiling. It is morally wrong and against the values of this country.”
Avi Meyerstein, founder of The Alliance for Middle East Peace, on X: “Unlike many places in the world, Americans are not required to carry ID to walk down the street. It’s a freedom many may have taken for granted.”
What Happens Next
Heightened immigration enforcement continues in cities like Minneapolis, as local officials call for ICE’s removal, arguing its presence has inflamed tensions on the ground. Protests are expected to continue nationwide as opposition grows to Trump’s immigration agenda.
