Dicta’s Danger: The Lingering Nuisance of Abel v. United States

This Article urges judges and lawyers to avoid relying on dicta when making legal claims. Dicta can cause confusion and generate incorrect legal conclusions. The most recent instance of dicta’s danger involves legal guidance on immigration arrests provided by the Department of Homeland Security’s General Counsel. Counsel erroneously relies on dicta from a 1960 Supreme Court case, Abel v. United States, in advising that law enforcement can legally enter a home armed solely with an administrative immigration arrest warrant. They cannot. The cited dicta precede binding Supreme Court precedent holding that the Fourth Amendment draws a firm line at the entry to the home. Before law enforcement can enter a home, they need a judicial warrant, consent, or exigent circumstances. The dicta Abel does not override governing Supreme Court precedent. This makes dicta dangerous. Careless or obtuse lawyers, overworked law clerks, and even judges may refer to dicta as if it were binding law. It is not. This Article uses a specific modern example to show that relying on dicta is perilous. Abel v. United States did not address the question of whether an administrative immigration arrest warrant permits entry to the home. Justice Frankfurter explicitly wrote that the question of an administrative arrest warrant’s legality was disavowed in the courts below. Thus, the question was neither briefed nor argued. Still, Justice Frankfurter used nearly five pages of judicial asides to comment on administrative arrest warrants. A judge’s unnecessary writing compounds modern day legal practice. Judges need to rein in their writing to avoid dicta. Lawyers need to carefully read decisions to cull out dicta. And all of us need to avoid citing dicta as if it is binding law. Executive policy, based on Abel’s dicta, suggests ICE officers can enter a home armed solely with an administrative warrant. This is wrong. As the Founders knew, executive power must be curbed to prevent overzealous officers from usurping the sanctity of our homes. This is not an anti-ICE position. This is not an anti-law enforcement opinion. This is a committed Fourth Amendment position based on history, originalism, and an unbroken line of cases assuring us that the Constitution draws a firm line at the entry to the home. We cannot let dicta diminish our constitutional rights. Our homes are our castles. And law enforcement can only enter our homes with a specifically drawn warrant based on probable cause assessed by a neutral and detached magistrate. This is the law. Anything Abel had to say about the matter is, and always has been, dicta.