The still ongoing shutdown of the federal Department of Homeland Security (“DHS”) (as of April 3, 2026) has presented three significant questions of Constitutional Law. First, is an unbreakable filibuster, by a minority voting bloc of United States Senators, against an appropriations bill passed by the House of Representatives, consistent with the United States Constitution? Second, does the President of the United States have unilateral authority under the Constitution to appropriate money to the DHS, while it remains substantially unfunded by Congress? And third, are the Immigration and Customs Enforcement (“ICE”) and the Border Patrol agencies of DHS already bound, in their fully funded and still active efforts to enforce federal immigration laws, by the Search Warrant requirement of the Fourth Amendment to the Constitution?
The first question is presented by the Senate’s procedural rule, authorized by the “Rules” Clause of Article I, Section 6 of the Constitution, allowing each Senator unlimited debate privileges on most matters under consideration on the Senate floor. When an organized minority voting bloc of 40 Senators combine their debate privileges to engage in a filibuster, they can effectively block passage of a bill favored by both the majority of Senators, and the House of Representatives. An ongoing question that arises under those circumstances is whether the Senate’s filibuster rules can or should be declared unconstitutional by the Senate itself, under its so-called “nuclear option” under the “Rules” Clause. It should be. Several provisions of the Constitution, when read together as part of a single legal instrument, clearly and unambiguously imply an intent in that document for the Senate to exercise its authorized powers, including its shared power to authorize appropriations of the public’s money, by majority rule. The Constitution has an explicit Tie-Breaker rule for the Senate (U.S. Const., Art. I §3), and further requires a super-majority vote for Senate action only for four, narrowly limited powers it may exercise. The restrictions of Senate power to super-majorities of Senators are 1) the sole power to convict a federal civil officer of charges brought by the House of Representatives in an impeachment resolution (ibid.); 2) the sole power to expel a fellow Senator (ibid.); 3) the power to override, with the House of Representatives, a Presidential veto (supra, at §7); and 4) the to ratify a treaty, thereby making it an enforceable law of the United States, negotiated by the President (U.S.Const., Art. II, §2). By necessary implication, all other powers of the Senate that are authorized by the Constitution require only a majority vote by the members who are present on the floor in a sufficient number to form a quorum.
The second question arose when President Trump unilaterally ordered DHS to pay back wages allegedly owed to Transportation Security Agency (“TSA”) employees for their important work during the official DHS shutdown. The President clearly has no authority under the Constitution to issue such an order. The Constitution provides, clearly to the contrary, as follows:
No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law . . . .
U.S. Const., Art. I, Sec. 9. Presidential orders, without underlying legislation, are not “Law,” and Presidential orders to spend money without underlying legislation, are not “Appropriations made by Law.” Even worse, the thought that the President can issue “emergency” orders to override a Congressional decision, as he has now claimed, defeats the overall purpose of the United States Constitution to establish a self-governing “republic,” instead of a dictatorship or a “kingdom.”
The third question comes from the House of Representatives’ refusal, to date, to enact the compromise bill that has now been passed by the Senate in order to end the filibuster, and to completely fund all DHS programs, other than ICE and Border Patrol, including unpaid back wages, despite the DHS shutdown. House leadership was apparently concerned that the Senate minority would continue to filibuster future and anticipated appropriation bills that included ICE and the Border Patrol, unless the majorities in both houses of Congress agreed to more substantial search and arrest warrant protections for the allegedly “illegal” aliens whom the President seeks to deport en masse Neither side should have bothered. The Constitution already provides all the search warrant protection the filibustering side legitimately demanded, and that protection is enforceable in the United States’ courts-of-law. The Fourth Amendment to the Constitution reads as follows:
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.
U.S. Const., Amendment IV. ICE and Border Patrol have conducted sweeps of particular venues or locations in efforts to first identify any “illegal aliens” thought to be located there, and then to arrest and deport all of “illegal” aliens found there. The Fourth Amendment’s language requires federal immigration agents to have “probable cause” to believe that some evidence of illegal conduct can be found at the “particular” location they are targeting. If the sweeping agents themselves do not have that level of belief, they must present a “warrant” signed by a judicial officer of the United States, that establishes the required level of “probable cause” “by Oath or affirmation.” To be sure, these requirements will, and do hinder the President’s otherwise lawful effort to deport all “illegal” aliens. But that kind of hindrance, against all “unreasonable” efforts to enforce the laws against individuals, was and remains the explicitly stated purpose of the Fourth Amendment. That Amendment, along with the rest of the United States Constitution (with the exception of the obsolete and so-called “Electoral College”) is what has made, and still makes “America Great.” But we must still enforce the “Electoral College” provisions of the Constitution all the same, until those provisions are lawfully amended.
/s/ Dan D. Rhea
CONSTITUTIONAL INTERPRETATIONS 
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