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By Andrew Stanton
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Homeland Security Secretary Kristi Noem saying that Americans should be prepared to validate their identity has drawn scrutiny from legal analysts.
Why It Matters
Noem on Thursday told reporters that U.S. Immigration and Customs Enforcement (ICE) agents may require some people to “validate their identity” during ongoing protests over immigration enforcement across the country.
Read More on Politics
Demonstrations have erupted over ICE tactics following the fatal shooting of Renee Nicole Good, a 37-year-old mother, in Minneapolis by an ICE agent. City leaders have said she was present during an ICE operation as a legal observer, a civilian who observes and records operations.
What To Know
Noem was questioned about reports that some Americans have been asked to provide proof of their citizenship in Minnesota. Some protesters and observers have reportedly been asked for proof of ID by federal agents, according to social media videos and media reports.
Noem said that ICE is doing “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.
Those remarks may brush up against the Constitution, legal analysts told Newsweek.
Paul Gowder, professor of law at Northwestern University, told Newsweek the law is “clear.” He pointed to the 2004 Supreme Court case Hiibel v. Sixth Judicial District, in which the court ruled that law enforcement can compel people to show identification “if, and only if, they have reasonable suspicion of some offense.”
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“Peaceful protest, of course, is protected by the First Amendment, and therefore is not grounds for reasonable suspicion of anything,” Gowder said.
This is complicated in the context of immigration enforcement, as the Supreme Court has suggested that race “can be relevant to reasonable suspicion of undocumented status,” though there must be other facts for reasonable suspicion of such undocumented status, he added.
“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, former federal prosecutor and ex-elected state attorney, told Newsweek that “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.
U.S. citizens have a right to decline to identify themselves if they are not being detained or questioned, but it is “seldom that simple or clear” in reality, McAuliffe added, and that Noem was being “less precise in her statement.”
“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. If one adds to the scenario any facts that might support a suspicion that a person is helping the suspect, or obstructing the agent’s attempts to evaluate the suspect’s status, it could change what the officer can do in terms of seeking identification, requiring someone to move, or detaining the person,” he said.
Former federal prosecutor Shanlon Wu told Newsweek that Noem’s remarks are “nonsensically vague,” as ICE cannot use targeted enforcement in every case when “admittedly asking bystanders merely because they are in the proximity of the alleged ‘target.’”
This would be a violation of 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 that immigrants must carry identification proving their status. At the time, some critics warned it could result in the detainment of American citizens, many of whom do not always carry a form of identification.
Assistant Homeland Security Secretary Tricia McLaughlin told Newsweek that the secretary's remarks would be 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 told Newsweek: "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, also to Newsweek: “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, also to Newsweek: "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 Wednesday: "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, saying the agency's presence has exacerbated tensions on the ground. Protests are likely to endure across the country over Trump's immigration policy.
Update 1/16/26, 5:51 p.m. ET: This article was updated with comment from Assistant Homeland Security Secretary Tricia McLaughlin.
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