ICE says it doesn’t need to give Congress access to its facilities during government shutdown

One of the casualties of the shutdown showdown is that Democrats have lost their access to ICE facilities.

U.S. Immigration and Customs Enforcement officials told a federal judge this week that the requirement that lawmakers be guaranteed access to their detention centers was part of spending legislation. So when the spending bills lapsed Oct. 1, the access requirement also “expired,” ICE said.

The upshot is that Democrats, who fought for years to get the special access, appear to have lost it, at least as long as the shutdown continues.

The special access provision gives members of Congress the right, without notice, to show up and inspect at least some ICE facilities. Congressional staffers are also guaranteed access, though ICE can require 24 hours’ advance notice.

That was attached as a “rider,” or policy provision, to the 2024 bill that funded the Homeland Security Department. That bill has been controlling the department’s funding for fiscal years 2024 and 2025.

But the new fiscal year 2026 began on Oct. 1, and because there has been no agreement on funding, the previous legislation has lapsed.

Democrats have filibustered bills to reopen the government. They said they cannot vote for anything that doesn’t include new money to extend expired Obamacare subsidies and roll back trims to health coverage programs included in Republicans’ budget bill from the summer.

Ralph Ferguson, who oversees mission support for ICE, told a judge this week the impasse means the Section 527 rider also lapsed.

“With the expiration of the FY2025 continuing resolution, ICE is no longer using for detention operations … any funds that were appropriated subject to Section 527,” Mr. Ferguson said in a court filing. “During a lapse in appropriations, ICE continues to incur obligations in advance of FY2026 appropriations, when permitted under law. Such obligations incurred during the lapse are not subject to the expired general provision Section 527.”

Andrew “Art” Arthur, a longtime Capitol Hill immigration staffer and former immigration judge, said that interpretation is likely correct.

“This is a contingency that congressional Democrats placed on Department of Homeland Security funding. Now that we are in a government shutdown that funding is no longer flowing, that rider no longer applies,” said Mr. Arthur, now at the Center for Immigration Studies.

Even though basic government funding expired, essential operations are continuing. That includes law enforcement operations such as ICE, which is making arrests, detaining people and carrying out deportations, although officers and agents aren’t receiving paychecks right now.

Mr. Ferguson said ICE is running its detention centers through money approved in this summer’s Big Beautiful Bill budget law and look-ahead money for fiscal year 2026 — neither of which has the Section 527 policy rider attached to it.

ICE didn’t respond to an inquiry for this story. It’s unclear whether any lawmaker has been denied access under the new stance.

ICE’s new viewpoint would apply to all members of Congress, though its practical effect hits at Democrats, who have been clamoring for access to ICE facilities as part of their denunciations of the deportation agency.

That’s led to some startling clashes.

In June, the Justice Department brought federal charges against Rep. LaMonica McIver of New Jersey, accusing her of impeding and interfering with ICE officers after she was caught on video bashing one with her forearm as she and fellow Democrats tried to gain access to a detention facility in Newark, New Jersey.

Ms. McIver has sought to have the charges dismissed, claiming “selective prosecution.” She has also said her visit is protected by the Constitution’s “Speech or Debate” clause, which grants immunity from prosecution to members of Congress engaged in core legislative duties.

In the wake of that clash, ICE announced a new policy to try to limit lawmakers’ access.

ICE claimed the right to limit visits based on “operational conditions” at facilities.

And ICE said it interpreted the Section 527 rider to only apply to ICE detention centers where migrants are held for extended periods of time while awaiting deportation. That excludes the processing facilities where ICE first brings most of its arrestees.

Rep. Joe Neguse, Colorado Democrat, led a lawsuit challenging those new interpretations, and it’s that case where ICE announced its shutdown policy.

Mr. Neguse’s office didn’t respond to inquiries for this story.

Judge Jia Cobb, a Biden appointee to the court in Washington, is overseeing the case. She asked Mr. Neguse to submit a brief on the next steps in the case, given the ongoing government shutdown.