The Supreme Court’s ICE raids ruling is shameful

In a ruling likely to go down in history as a shameful expression of anti-immigrant prejudice, the Supreme Court has allowed ICE agents to re-start “roving stops” of people suspected of being undocumented immigrants because of what they look like, how they speak, and where they are gathered to work or seek employment. The 6-3 ruling in the court’s emergency docket reversed a July order by federal district court judge in Los Angeles, which found ICE had failed to meet the legal requirement of “reasonable suspicion” for conducting the stops.

The violation of fundamental rights based on ethnicity, language, and economic circumstances isn’t just bad for the Latinos who are being targeted. It undermines the constitutional rights of all Americans and the core principle of equality before the law. Although the majority joined a single, unsigned opinion, Justice Brett Kavanaugh wrote an explanation for his vote, so that is the only insight we have into their reasoning.

The case involves ICE raids that began in June in Los Angeles. In the raids, Kavanaugh wrote, “teams of armed and masked agents pulled up to car washes, tow yards, farms, and parks and began seizing individuals on sight, often before asking a single question.” The point of the raids was to ask people if they were US citizens or otherwise in the country lawfully. In theory, those who could demonstrate lawful presence were released, while others — more than 2,800 — were detained.

The federal district court judge ascertained that the raids were based on four factors: “(1) [the targets] apparent race or ethnicity; (2) whether they spoke Spanish or English with an accent; (3) the type of location at which they were found (such as a car wash or bus stop); and (4) the type of job they appeared to work.” Those criteria did not suffice to establish the reasonable suspicion necessary for immigration-related stops, and she ordered the practice halted while she determined what long-term legal remedy would be appropriate. Astonishingly, Kavanaugh (and presumably the other five conservatives) took the position that while “apparent ethnicity alone cannot furnish reasonable suspicion,” it could count as a “relevant factor when considered along with other salient factors.”

It should be a basic principle of US law that ethnicity cannot be treated as a statistically appropriate factor in arresting people for any purpose. The same should be true of the language people happen to be speaking at a given moment, the accents they have, and where they work. It should go without saying that many US citizens are or appear to be Latino; speak Spanish or accented English; and work in low-wage day-labour jobs. It should be more obvious still that individuals have a fundamental constitutional right to be or do any of these things without being arrested and held until they provide documentation proving their citizenship.

As Justice Sonia Sotomayor said in dissent, “The Government, and now the concurrence (by Kavanaugh), has all but declared that all Latinos, US citizens or not, who work low wage jobs are fair game to be seized at any time, taken away from work, and held until they provide proof of their legal status to the agents’ satisfaction.”

That’s true. What’s also true is that the Supreme Court’s ruling doesn’t only apply to Latinos. If you are in the U.S. and you’re reading this, you, too, could be arrested and required to prove your citizenship at any moment if you look or sound like you fit some hypothetical profile — one the government did not even have to support with any meaningful statistical evidence.

Kavanaugh wrote that “reasonable suspicion means only that immigration officers may briefly stop the individual and inquire about immigration status. If the person is a US citizen or otherwise lawfully in the United States, that individual will be free to go after the brief encounter.” But being stopped and detained by federal agents isn’t merely some “brief encounter.” It often entails forcible arrest, followed by questioning and investigation — during which one is presumed to be undocumented and unlawfully present in the country unless they can demonstrate otherwise.

Kavanaugh also made the outrageous suggestion that the plaintiffs in this case, who had previously been stopped, lacked standing to ask the court to ban the raids because they could not prove with sufficient certainty that they, personally, would be stopped again. This disastrously cramped conception of who gets to have a day in court would be the main target of my outrage if the court’s opinion on the use of ethnicity, language and workplace as factors in immigration enforcement weren’t even more upsetting. What makes this decision a striking example of contemporary anti-immigrant bias is how much it deviates from the ordinary constitutional rules concerning government stops of ordinary citizens. It would be plainly unlawful for the government to stop all young Black men in high-crime neighborhoods — or for that matter, all Patagonia-clad White guys on Wall Street in a sweep for insider trading. Technically, the standard for a criminal stop is probable cause, which as Kavanaugh noted is higher than the “reasonable suspicion” standard for immigration stops.

Noah Feldman, Tribune News Service