ICE and CBP Constitutional Accountability Act
- Sponsor
- Sen. Merkley, Jeff [D-OR]
- Committees
- Judiciary Committee (primary)
- Last action
- Jan 29, 2026
Bottom line
The bill creates a direct legal pathway for individuals to sue the U.S. Government for constitutional rights violations by ICE and CBP personnel, expanding accountability and potential financial liability for the federal government.
What it actually does
This bill amends the Federal Tort Claims Act (FTCA) to establish a direct civil remedy against the U.S. Government for individuals whose constitutional or statutory rights have been violated by officers or agents of U.S. Customs and Border Protection (CBP) or U.S. Immigration and Customs Enforcement (ICE). It waives sovereign immunity, allows for punitive damages, and removes the requirement for plaintiffs to file an administrative claim before suing, regardless of whether the officer's action was consistent with agency policy or custom.
Proponents argue
Supporters argue that this bill is essential for ensuring accountability for alleged widespread constitutional rights violations by ICE and CBP officers, including due process violations, racial profiling, and unreasonable searches and seizures. They contend that existing legal remedies are insufficient and that this legislation provides a vital mechanism for victims to seek redress and deter future misconduct, thereby restoring public trust in federal agencies.
Opponents contend
Opponents might argue that the bill could expose the federal government to excessive litigation and substantial financial liability, potentially hindering the operational effectiveness of critical border security and immigration enforcement agencies. They may also assert that existing accountability mechanisms, such as internal investigations and the Bivens doctrine, are sufficient, and that allowing punitive damages and bypassing administrative claims could create an undue burden on taxpayers and the government.
The bill is very short and can be read and understood quickly, allowing ample time for comprehensive evaluation.
Section 2
Congressional Findings on Constitutional Violations
This section outlines Congress's findings that the First, Fourth, Fifth, and Fourteenth Amendments protect fundamental rights, and that ICE and CBP officers have allegedly undermined these rights through actions such as violating due process, racial profiling, and conducting unreasonable searches and seizures. It also states that reckless conduct has led to injuries, deaths, and public distrust, emphasizing that civil suits are a necessary remedy for rights violations by government officials.
Supporters argue
Supporters argue these findings accurately reflect documented abuses by immigration enforcement agencies and provide a strong moral and legal basis for the bill's remedies, highlighting the urgent need for enhanced accountability and protection of civil liberties.
Critics contend
Opponents might argue that these findings are overly broad, potentially mischaracterize the actions of dedicated officers, and could unfairly prejudice the public against agencies vital for national security and border control, potentially undermining their morale and effectiveness.
Tradeoffs
This section balances the need to acknowledge alleged misconduct and protect civil liberties against the potential for broad generalizations about law enforcement agencies and their personnel.
Section 3
Establishment of Civil Remedy for Constitutional Violations by ICE/CBP
This section amends the Federal Tort Claims Act (28 U.S.C. 2674) to make the U.S. Government directly liable for constitutional or statutory rights deprivations by ICE or CBP officers, or any person acting under their direction. This liability applies regardless of whether the officer's action was consistent with an official policy or custom. The provision explicitly waives sovereign immunity, allows for punitive damages, and removes the requirement for an administrative claim (28 U.S.C. 2675(a)) before filing a civil action. It also specifies that monetary damages will be drawn from certain prior appropriations and the Judgment Fund.
Specifies that monetary damages awarded under this new provision shall be derived from amounts appropriated under "title IX and sections 100051 and 100052 of Public Law 119-21" and, if such amounts have been depleted, from amounts appropriated pursuant to section 1304 of title 31, United States Code (the Judgment Fund).
Section 3, within the amendment to 28 U.S.C. 2674
Why it matters:This is standard legislative practice for specifying funding mechanisms, but the specific public law reference requires external lookup to understand the original source of funds. It's a technical detail that determines where the money comes from.
Case for: Supporters would argue this ensures a dedicated funding stream for compensating victims, indicating a clear commitment to financial redress and potentially avoiding direct impact on agency operational budgets initially. It provides clarity on the source of funds.
Case against: Opponents might argue that tying damages to specific, potentially limited, prior appropriations could create uncertainty about the availability of funds. Drawing from the Judgment Fund ultimately places the burden on general taxpayer funds without clear accountability for the specific agencies involved, potentially masking the true cost.
Estimated impact: This provision dictates the financial mechanism for all judgments under this act, potentially drawing millions or billions from specified appropriations or the Judgment Fund, depending on the volume and scale of successful lawsuits.