ICE's $85 billion budget traces back to the 1990's

How the agency became a behemoth through the combination of policy changes and bureaucratic redesign at risk of turning into a national secret police.

Democrats in the Senate continue to hold up the last of the 12 appropriations bills for fiscal year 2026, which would fund the Department of Homeland Security (DHS), in order to demand reforms to U.S. Immigration and Customs Enforcement (ICE).

ICE is a new agency by federal standards, created at the same time as DHS in the aftermath of the September 11, 2001 terror attacks. It represented the recognition by Congress that the previous immigration-related bureaucracy had been a weak link in domestic security, as some of the hijackers had overstayed tourist visas to prepare for the attack. Although one component of the agency has a counterterrorism role, ICE’s most significant post-9/11 contribution is as a federal agency with the specific mission of removing people violating immigration laws.

Billions of additional funding, however, isn’t enough to explain how ICE has become a mass-deportation force. ICE agents are using legal authorities granted to federal immigration enforcement officers from all the way back in the Clinton Administration, just at much greater scale and pace. This post will explain how the agency became a behemoth through the combination of policy changes and bureaucratic redesign at risk of turning into a national secret police.

ICE’s post-9/11 origins

Congress created ICE in the 2002 Homeland Security Act, the legislation that combined 22 existing agencies under a single new cabinet department. The legislation took the 36,000 employees of the Immigration and Naturalization Service (INS) and split them among three new agencies. ICE was assigned enforcing immigration laws and deportation as its primary role. The act created a separate Bureau of Customs and Border Protection (CBP) that combined the missions of securing U.S. borders and monitoring the flow of imports and exports. A third agency, the Bureau of Citizenship and Immigration Services (USCIS), was launched to manage the processing of applications for permanent residency, naturalization, and asylum. Unlike the other two agencies, it has no policing powers.

INS itself had experienced a complicated bureaucratic lifespan. It was created by executive order in 1933 as a merger of two separate bureaus within the newly-established Department of Labor. It was then shifted to the Department of Justice in 1940 out of concern about foreign subversion at the start of World War II. Designed initially to unify the bureaucratic processes of immigration application and naturalization, it took on more enforcement duties. INS managed border security and immigration law enforcement in the interior of the nation. It was responsible for the mass deportation effort during the 1950s unfortunately named “Operation Wetback,” a systemic removal of Mexican farm laborers in the American Southwest.

Enforcement authority from the 1990s

A surge in southern border crossings during the 1990s strained INS and by 1996, the agency estimated that 5 million people were living in the country without legal status and that the number of unauthorized immigrants was growing at a rate of 275,000 annually. In response to this volume, mostly from Mexico, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Among its changes to deportation policies, the law granted immigration officers new powers to designate someone for “expedited removal,” or immediate deportation without review by an immigration court.

Expedited removal originally applied to those arriving at a port of entry without valid entry documents like a passport, who gave false information, or lied about being an American citizen. If an immigration officer determined someone presenting themselves at a border fit such criteria, IIRIRA granted them the authority to detain and quickly deport. Expedited removal subsequently was expanded during the Bush Administration to include migrants arriving by sea and those apprehended within 100 miles of a border within 14 days of entering the country. (The 100-mile-wide border zone is larger than you might expect. It covers most of the United States by population.)

Congress also steadily increased the INS budget in the late 1990s to curtail unauthorized border crossings. U.S. Border Patrol, INS’s enforcement unit, saw its budget increase from $452 million in FY 1995 to $1.06 billion in FY 2000. The INS workforce grew from 21,000 in FY 1995 to 32,100 in FY 2000. Along with the money came new mandates and regulations that the agency struggled to implement in the time granted.

Public perception of the agency, meanwhile, continued to erode. The public perceived most undocumented migrants coming over the Mexican border, even though INS noted that more than 40% of undocumented migrants had arrived at ports of entry with legal visas that they overstayed. Private militias started patrolling the Southwest to draw attention to the issue. Recognition that the agency was struggling in its current form grew by decade’s end and proposals called for splitting the enforcement and immigration service functions apart into separate offices.

Post-9/11 changes

The September 11, 2001 terrorist attacks upended the existing federal response to a host of immigration-related issues. All 19 hijackers had received visas between 1997 and the attacks and they had entered the country 33 times. Three of them who entered multiple times violated federal law, but were not caught. Many commented at the time that the porous overland borders constituted an additional national security threat.

Congress and the Bush Administration explored consolidating various agencies and programs under a single cabinet department to better respond to threats to the American public. House Republicans introduced Bush’s plan creating the Department of Homeland Security in June 2002. It brought the functions of INS out of DOJ and into the new department and followed through with previous ideas about INS reorganization. Congress passed the bill in November 2002.

The law gave the Bush Administration leeway to organize DHS components over the next 60 days. It created ICE by grouping all interior enforcement functions into one office, which included managing the detention of those it arrests. It also combined the Border Patrol and Customs Bureau from the Treasury Department into a single border-focused entity. ICE and CBP went into operation in March 2003 with budgets of $3.3 billion and $1.52 billion, respectively.

The system of courts that hear immigration-related cases remained part of the Department of Justice. As Congress poured more money into both ICE and CBP over the next several decades, funding for immigration courts proved inadequate for the growing caseloads. In FY 2024, the nation’s 725 immigration judges averaged nearly 5,000 cases assigned. The overburdened system created even more incentive for ICE agents to utilize expedited removal.

ICE’s budget grew consistently during the rest of the George W. Bush Administration, reaching $6 billion in FY 2009. Congress during the Obama Administration focused more on increasing funding for CBP, but the first Trump and Biden Administrations began to ratchet ICE budgets upward again. In the last fiscal year of Biden’s term, ICE received $9.6 billion in funding.

The funding bill passed via reconciliation in 2025 (to avoid a Senate filibuster) added an additional $75 billion to ICE’s budget authority over four years on top of its annual appropriation in funding for DHS, essentially tripling its funding. This money is being tapped to keep the agency operating during the lapse in funding for DHS that began this February.