How has the discretionary function exception been applied in FTCA suits involving ICE?
Executive summary
The discretionary function exception (DFE) to the Federal Tort Claims Act (FTCA) has repeatedly been invoked to bar FTCA suits arising from ICE conduct, with courts applying the two-step Berkovitz–Gaubert framework to determine whether ICE agents’ actions involved judgment grounded in policy and thus remain immune [1] [2]. Empirically, courts grant dismissal under the DFE a large share of the time—law review and reporting indicate courts agreed to dismiss FTCA suits roughly three-quarters of the time when the DFE was invoked—creating a major barrier to civil monetary accountability for immigration enforcement conduct [3] [4].
1. How courts decide DFE questions in ICE cases: the familiar two-step that matters
Federal courts assess DFE claims using a two-step inquiry: first whether the challenged action involved judgment or choice rather than being compelled by statute or regulation, and second whether that judgment is susceptible to policy analysis, typically meaning it was grounded in social, economic, or political policy considerations [1] [5]. The Supreme Court’s line of cases distilled in Berkovitz and Gaubert presumes that when an agency permits discretion, the agent’s actions are likely policy-grounded and therefore fall within the DFE unless a statute or regulation removed discretion [2]. In immigration enforcement suits against ICE, that presumption often favors the government because ICE policies and guidelines routinely leave substantial operational choices to agents, which courts treat as “susceptible to policy analysis” [1] [2].
2. The statute and doctrinal architecture that empowers the DFE defense
The DFE is codified in 28 U.S.C. § 2680(a), which explicitly bars claims “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty,” and courts read that language through common-law understandings of discretion and the separation-of-powers concerns that underwrite sovereign immunity exceptions [6] [7]. Scholars emphasize that Congress crafted the FTCA as a waiver of sovereign immunity subject to discrete exceptions like the DFE, and that interpreting the DFE requires balancing accountability against the risk that litigation will micromanage policy choices fundamental to government operations [7] [8].
3. Outcomes in practice: dismissal is common, accountability is constrained
Empirical and practitioner accounts show that the government successfully obtains dismissal under the DFE in a large fraction of immigration-related FTCA defenses, with a Harvard Law Review–cited analysis and reporting indicating nearly 75% dismissal rates where the DFE was raised [3] [9]. Immigration-litigation primers list the DFE as among the most common defenses the United States invokes in ICE FTCA cases, alongside other jurisdictional and proviso-based arguments [4]. The practical consequence is that many plaintiffs who allege misconduct by ICE agents must surmount a high threshold to prove the actions were non-discretionary or not policy-grounded, or else lose the only vehicle for monetary relief against the government [4] [1].
4. Tensions and fault lines: unconstitutional conduct, law-enforcement proviso, and circuit splits
There is active doctrinal debate about whether the DFE should shield unconstitutional discretionary acts; some scholarship argues the exception should not extend to discretion that violates constitutional constraints and that historical common law supports limiting immunity where discretion is unconstitutional [7] [9]. Courts have also grappled with the interplay between the FTCA’s law-enforcement proviso—which permits suits for certain intentional torts—and the DFE, producing circuit splits that reached the Supreme Court in Martin v. United States and prompted remands for reconsideration of DFE application [10] [11]. These tensions reveal both substantive disagreement about the boundaries of protected “policy” and institutional incentives: defendants press DFE defenses to avoid liability, while advocates seek to cabin the exception to preserve remedies for serious misconduct [12] [10].
5. Stakes, agendas, and what the record does not yet settle
The growing contraction of constitutional remedies like Bivens has elevated the FTCA as one of the few avenues for redress, so how courts construe the DFE in ICE suits has outsize consequences for deterrence and accountability of immigration enforcement [13] [3]. Some commentators and law firms frame DFE defenses as necessary to preserve effective public administration, while civil-rights scholars and plaintiffs’ lawyers characterize sweeping DFE readings as insulating unlawful conduct from review—each side advances plausible institutional interests and strategic incentives [7] [12]. This review is constrained by available reporting: while studies and articles document high dismissal rates and doctrinal disputes, comprehensive empirical mapping of ICE-specific FTCA outcomes across circuits over time is not supplied in the provided sources, so finer-grained conclusions about trends by district or claim type remain beyond this account [3] [4].