How can Congress legally abolish an executive agency like ICE and what precedent exists?
Executive summary
Congress has clear legal levers to abolish an executive agency like U.S. Immigration and Customs Enforcement (ICE): pass legislation rescinding the agency’s statutory authority, strip or redirect its appropriations, and reassign its functions to other entities — a process Congress used in 2002 when it dismantled the Immigration and Naturalization Service and redistributed duties under the Homeland Security Act [1]. Political will, competing visions about what should replace ICE, and control of appropriations are the practical barriers; advocates and critics alike have already proposed statutory roadmaps and budgetary strategies to achieve abolition or deep curtailment [2] [3].
1. Congress’s constitutional and statutory power to create or eliminate agencies
Under Article I, Congress has the authority to create, change, or terminate federal agencies because agencies exist by statute; multiple outlets note that Congress “creates” agencies and thus can eliminate them by changing the law that established them [4] [5]. Practical abolition therefore begins with a bill: Representative Thanedar’s Abolish ICE Act, for example, explicitly calls for ICE to be abolished 90 days after enactment, illustrating the straightforward statutory route [6] [7].
2. The budget is a blunt but potent tool: defunding and the power of the purse
Beyond repeal, Congress can neutralize an agency by rescinding funding or imposing restrictive appropriations riders; advocacy groups and legal advocates urge leveraging the appropriations process to “bring these agencies to a heel” by cutting funds for detention and enforcement [3] [8]. The New York Times reporting underscores how appropriations fights shape agency operations and that emergency or omnibus allocations can preserve functions even amid political pushback, so budgeting is both powerful and politically fraught [9].
3. Transfer of functions: abolition without service gaps
A central legislative challenge is what happens to ICE’s authorities if the agency is abolished; precedent shows Congress can transfer duties to other agencies — the Homeland Security Act dissolved the INS in 2002 and redistributed immigration functions across DHS components, a direct precedent for managed dissolution and reassignment [1]. Recent abolition proposals by members of Congress envisage commissions or statutory roadmaps to shift critical functions to other departments, signaling that targeted transfer language is part of contemporary bills [2] [10].
4. Political and legal contests that follow statutory repeal
Eliminating ICE by statute would almost certainly provoke legal challenges and executive-branch resistance over implementation details, and Congress would face opposition from lawmakers who advocate reform over abolition; news coverage documents internal Democratic debate and Republican defense of enforcement functions, showing abolition is as much a political fight as a legal one [4] [7]. Moreover, Congress’s moves could be blunted or complicated by alternative funding streams or reallocation of money in larger legislative packages [9].
5. Movement politics, agendas, and framing matters
The “Abolish ICE” movement, which gained mainstream traction after high-profile controversies, frames abolition as a moral and structural fix to alleged abuses — an argument echoed in bills and advocacy materials calling for abolition or for redirecting ICE’s funds and authorities [11] [8]. Conversely, DHS officials and pro-enforcement voices frame ICE’s responsibilities as essential to public safety, underscoring the competing agendas driving both legislative proposals like Thanedar’s and administrative pushback [7].
6. Practical roadmap used by advocates in proposed legislation
Legislative strategies being proposed combine repeal clauses, immediate funding rescissions, and transitional commissions: Thanedar’s text would terminate ICE within a statutory timeframe and rescind funding [6] [7], while prior bills proposed commissions to map function transfers and staffing transitions to avoid operational chaos [2] [10]. Legal scholars and NGOs emphasize that careful statutory drafting is required to prevent enforcement gaps while achieving accountability goals [5].
A lawful abolition of ICE is therefore straightforward in principle — Congress passes a law changing or repealing the statutes that created or fund the agency — but complex in practice because lawmakers must also decide where ICE’s authorities go, how funding is reallocated, and how to manage political, administrative, and potential judicial pushback [1] [3] [2].