For many of us, living in President Donald Trump’s America feels like a never-ending doom loop. Every day brings a fresh batch of headlines about the administration’s lawless attacks on independent federal agencies, the judiciary, and our democracy itself—and you can easily miss some important things. To help you sift through the noise, we’re launching a new newsletter: Executive Dysfunction.

Each week, we will surface one important legal story that you may have overlooked amid all the ongoing chaos. We’ll be highlighting stories about how Trump is doing violence to the law, and stories about how people involved in shaping and upholding the law—judges, lawyers, lawmakers—are pushing back. And we’ll also keep you in the loop about what’s going on with our Slate Jurisprudence team, including Mark Joseph Stern and Dahlia Lithwick. Welcome to the first edition of Executive Dysfunction. To sign up to receive this newsletter in your inbox every week, please click here.

You may have missed it over the long weekend, but a partial government shutdown began on Saturday. After over a year of enduring President Donald Trump’s mass deportation agenda—as we’ve watched masked agents drag people through the streets, harass families in their homes, and even kill U.S. citizens in broad daylight—Democrats in Washington decided to use their power over federal funding to try to force change. Before signing off on any new dollars for the Department of Homeland Security, Democrats have put forth a list of 10 demands they want Republicans to meet in an effort to rein in a rogue Immigration and Customs Enforcement agency.

One big question remains, though, as we wait to see if the partial shutdown begins to affect the day-to-day of Americans in travel and other parts of life: Would the Democratic demands, if met, actually do anything to stem ICE’s abuses? This question has already spurred fights on social media, where some progressives are excoriating the Democrats for not asking for nearly enough, and others are praising these proposals as pragmatic solutions that will make a real difference. The truth is probably somewhere in between.

“What these mostly require is for ICE to follow laws and return to practices and procedures that had been standard practice for a long period of time,” Scott Shuchart, former assistant director for regulatory affairs for ICE under the Biden administration, told me. “And so they’re not very ambitious.” ICE would not be completely transformed by this particular set of Democratic demands; rather, it would return to a pre-Trump status quo when we were not witnessing masked agents rampaging across the entire country, pepper-spraying children, ripping disabled people out of their cars, and gunning men and women down in the street.

Senate Minority Leader Chuck Schumer and House Democratic Leader Hakeem Jeffries’ list of demands—unveiled in early February, shortly after Alex Pretti was shot to death by federal agents in Minneapolis—ranges from banning agents from wearing masks to outlawing racial profiling. Progressives want the party to go further, while activists have been pushing to simply abolish ICE completely. Voters want something to give, with polling consistently showing they are seriously concerned about the way the Trump administration is handling immigration enforcement.

When looking at Democrats’ list of demands, it’s important to consider that U.S. immigration law has not been significantly updated since Congress passed the Illegal Immigration Reform and Immigration Responsibility Act in 1996. Whatever the party manages to win in this government funding negotiation will likely be narrow and insufficient to solve our country’s biggest immigration challenges, but it could pare back some of the worst excesses and abuses of the current administration. Thus far, negotiations don’t seem to be going anywhere. It’s also hard to say whether ICE would even obey any new restrictions, given the administration’s persistent refusal to comply with congressional directives and the Supreme Court’s tolerance for such defiance. During a recent congressional oversight hearing, for instance, DHS leadership outright rejected a mask ban, one of Democrats’ key demands.

Let’s take a closer look at the list to try to assess whether the demands actually stand a chance of making a material difference in how ICE uses—and abuses—its vast power over immigration enforcement.

Democrats want to prohibit DHS officers from entering private property without a judicial warrant. This is something that’s technically already against the law, though the administration has attempted to circumvent that very basic right with little pushback. “That’s what the Fourth Amendment has always required,” Nayna Gupta, policy director at American Immigration Council, told me. “The hope here would be not just that Congress restates the law, but that they offer some consequences for the fact that officers don’t follow them, whether that’s dismissal of cases of anyone they arrest once they’re inside, or other disciplinary measures.” According to the public-facing list, there’s no real enforcement mechanism, though this may get sorted out in the writing of any legislation.

Also baked into this demand is a requirement that ICE officers verify that a person is not a U.S. citizen before holding them in immigration detention, as has reportedly happened countless times in recent months. This could be one of the harder things for Republicans to say no to. During congressional hearings last week, acting ICE Director Todd Lyons seemed to acknowledge how politically perilous it is for the agency to be detaining U.S. citizens, hemming and hawing when asked if ICE arrested and deported U.S. citizens, before saying that the agency did only “detain” Americans.

While this feels like a straightforward demand, Shuchart believes that Democrats not taking it further is a missed opportunity to rein in the indiscriminate detention of thousands of immigrants, whether or not they have any sort of criminal background or present any sort of flight risk. “I would like to see this Congress clarify the detention authority and undo this craziness that ICE is doing, where everybody is now subject to expedited removal and mandatory detention.”

No Masks and ID Requirement for Agents

Prohibiting immigration enforcement agents from wearing face coverings is something many states are already attempting to implement through legislation. However, these state efforts face challenges in court given broad federal authority to enforce U.S. immigration law and local officers’ fear of conflict with other armed law-enforcement agents. A federal judge recently blocked a new California law prohibiting federal agents from wearing masks, holding that it “unlawfully discriminates against the federal government” because it did not apply to all state officers as well. Although California could in theory address this defect, the ruling illustrates the constitutional challenges that states face when regulating a federal agency, and shows the need for a uniform, nationwide rule from Congress.

Congressional Democrats are also trying to compel immigration enforcement agents to display their agency, unique ID number, and last name. This would be a significant policy change, something Shuchart says would go beyond existing law. As Felipe De La Hoz recently noted in Slate, it wouldn’t reverse the fact that ICE is currently enrolling any and all federal law-enforcement agencies into a vast police “blob” as part of its immigration agenda. It would, though, allow people to at a minimum recognize who is taking part in any given enforcement action, leading to a greater potential for future accountability and a chance that agents will think twice before committing abuses.

Protect Sensitive Locations

Democrats want to prohibit DHS funds from being used to conduct enforcement near sensitive locations, including medical facilities, schools, child care centers, churches, polling places, and courts. If Republicans agree to this proposal, Shuchart said, it would be an enormous change in current policy.

This demand would revert back to the Biden administration’s position, and in theory would end the Trump administration’s strategy of arresting migrants who show up to court-mandated hearings. It could also stop ICE agents from entering hospitals and interfering with patients’ medical care, as was the case in Minnesota. Health care workers there reported an incident when ICE agents hovered over the bedside of a patient for more than 24 hours, at times shackling them to the bed and denying them privacy. In another encounter with ICE, agents remained present while a patient was being bathed.

Stop Racial Profiling

Democrats also want to bar DHS officers from detaining people based on their ethnicity, spoken language, accent, or place of work. In September, the Supreme Court seemed to signal that these detentions—known as “Kavanaugh stops”—are permissible under the Fourth Amendment. But that decision does not prevent Congress from forbidding them by legislation. This would be a sea change in immigration policy if Democrats can get it.

However, as currently written, this proposal includes no penalty for DHS or individual officers if they were to violate such a ban. And if there is no way to hold agents or agencies accountable, then “it’s a meaningless restriction,” Gupta said.

Uphold Use-of-Force Standards

This is a critical demand where, according to Shuchart, Democrats have fallen short. They are asking that DHS institute a “reasonable use of force policy, expand training and require certification of officers. In the case of an incident, the officer must be removed from the field until an investigation is conducted.” However, the demand does not define what a “reasonable” policy is, nor does it mention how this would be implemented.

It’s worth noting that last year, the Trump administration shut down DHS’s Office for Civil Rights and Civil Liberties, an oversight agency that was responsible for investigating allegations against the agency from migrants, their families, and the public. Reinstating this office could play a critical role in upholding any use-of-force policy, according to Shuchart. It’s not in the list of Democratic demands, however. “I think the entire model of leaving the immigration agencies to their own devices and hoping for accountability on the back end just doesn’t work, and Congress needs to find a way to be much more prescriptive about what it expects,” Shuchart noted.

Ensure State and Local Coordination and Oversight

In light of the FBI stonewalling Minnesota prosecutors’ efforts to investigate the killing of Renee Nicole Good and withholding evidence from Alex Pretti’s death, Democrats are asking to codify a requirement that DHS “preserve the ability of state and local jurisdictions to investigate and prosecute potential crimes and use of excessive force incidents.” It also would require that evidence be preserved and shared with local jurisdictions. This issue flared up when the federal government appeared to allow the contamination of evidence from the scene of Pretti’s killing, then refused to let state investigators access that evidence in an alarming breach of protocol.

This reform could help states win federal court orders securing access to evidence when immigration agents commit violent crimes within their borders. But again, it does not create any new ways of holding immigration agents accountable for abuses, a weak spot across these demands. Until victims and their families can file claims against officers who violate their rights, there will be few disincentives against excessive use of force. “There are more meaningful reforms that could have been included, in particular ensuring that there is a way for people to individually sue federal officers who violate constitutional and civil rights,” Gupta said. Right now, it is almost impossible for victims to file such suits, thanks in part to a series of Supreme Court decisions shielding federal officials from accountability. But Congress has the power to effectively overturn these rulings and create liability for federal officials by statute.

Build Safeguards Into the System

Democrats want to hold DHS to a higher standard when it comes to immigration detention, as many of us have seen and read about the horrific conditions at detention centers, where illnesses are rampant, medical care is scarce, and access to clean water and food is limited.

Through this demand, Democrats are asking to standardize all buildings where people are detained, ensuring that each one abides by the same basic detention standards and requiring immediate access to a person’s attorney to prevent citizen arrests or detention. States would also be allowed to sue DHS for violating these requirements, and federal lawmakers would be allowed to inspect ICE facilities.

This demand, though, doesn’t address the specific sanitation issues at ICE detention centers, nor does it attempt to claw back the agency’s authority to set its own standards, where Shuchart believes that the real problem lies. “Congress needs to have enforceable detention standards in place, rather than letting ICE write its own detention standards and hoping that the Office for Civil Rights and Civil Liberties will hold them to that,” Shuchart said. “Because guess what? The administration got rid of CRCL, and now nobody on the outside is holding ICE to its standards.”

Body Cameras for Accountability, Not Tracking

Forcing federal agents to use body-worn cameras when interacting with the public has been a hotly debated issue, with some arguing it deters officers from misbehaving, while others feel it does little to inhibit abuses. (The agents who shot Pretti were reportedly wearing body cameras.) During that recent congressional hearing, acting Director Lyons confirmed that many federal agents are already using body cameras and the agency intends to roll them out to every agent.

Just last week, body-camera footage of a Border Patrol agent involved in the shooting of Marimar Martinez in Chicago was released, and it appeared to contradict DHS’s version of the incident. Body-cam footage from other violent incidents in Chicago demonstrated that federal agents were brazenly lying about protesters’ actions to justify excessive force against them. Shuchart said that policing experts tend to believe that body cameras are valuable, as they improve the quality of police interactions with the public. Especially considering the Trump administration’s lawless approach to immigration enforcement, where they have outright lied about what actually happened in high-profile ICE encounters, Shuchart thinks Democrats’ demand for body cameras is the right move.

Democrats also want to prohibit the footage from being used to track Americans in a database of people exercising their First Amendment rights, something that federal agents have threatened protesters with. This is a critical safety measure, as we’re seeing the administration abusing its powers to intimidate those who criticize it, and it seems to be surveilling dissenters.

The bottom line for this entire list of demands is that some of what Democrats are asking for would have a real impact in counteracting how ICE has been operating with impunity across the country, but it truly is a bare minimum. If they fold, though, without achieving many of these baseline limits on ICE’s ability to abuse citizens and noncitizens alike, Democrats will themselves be on the hook the next time ICE commits a high-profile atrocity like the ones we’ve seen so frequently in Minneapolis.

We hope you learned a thing or two from this edition of Executive Dysfunction, and if you enjoyed reading it, please consider supporting our legal journalism by becoming a Slate Plus member!

Elsewhere in Jurisprudence

Dahlia Lithwick covered a number of these issues in the most recent episode of Amicus. Lithwick spoke with Linus Chan, a professor and lawyer in Minneapolis who has been working with clients caught in ICE’s snare during the recent surge, about the way ICE has been getting around the current restrictions that already exist on its detention authority.

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In that same episode, she also spoke with journalist Andrea Pitzer about the Stephen Miller campaign to expand the Department of Homeland Security’s capacity for mass detention and how it already resembles some of the darkest periods in human history.

In the Slate Plus segment of that episode, Lithwick and Mark Joseph Stern discussed the various breadcrumbs that Supreme Court Justice Sam Alito has been leaving us that he intends to retire this summer, and what it would mean for the court for its staunchest partisan to step down.

Amherst College law professor and Slate contributor Austin Sarat wrote about another issue that seems destined soon to reach the Supreme Court: whether Texas will execute a likely innocent man, Charles Flores, or whether the high court will force the state to reconsider Flores’ case.

On Tuesday, Trump’s most vile spokesperson, Tricia McLaughlin, announced she would be departing her job at DHS. Stern explained how this is a bittersweet moment for immigration activists, who relied heavily on McLaughlin’s outlandish statements to disprove DHS lies in court.

Thank you for reading Executive Dysfunction! We’re thrilled to be in your feeds and will be back with more dysfunction analysis next week.

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