The Supreme Court Just Let ICE Detain Americans Based on Race

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On Monday, the Supreme Court allowed the Trump administration to use racial profiling in its militarized immigration raids across Los Angeles, halting an injunction that had barred officers from targeting Latinos based on ethnicity. The court did not explain the reason for its shadow docket order , which appeared to split 6–3 along ideological lines. In dissent, Justice Sonia Sotomayor warned that the decision was “unconscionably irreconcilable with our nation's constitutional guarantees,” opening the door to violent persecution of Latinos—including American citizens—by “masked agents with guns.” The majority did not respond to this extraordinary charge, perhaps because it is so obviously true.

Monday's case, Noem v. Vasquez Perdomo , revolves around the Trump administration's sweeping immigration dragnet in and around LA, dubbed Operation at Large. The government deployed Immigration and Customs Enforcement officers to arrest anyone suspected of lacking legal status; many of those officers wore masks, refused to identify themselves as law enforcement, and carried handguns or assault weapons. They targeted locations where Latinos frequently congregated, including Home Depots, car washes, bus stops, churches, and parks. And they targeted individuals who “appeared” Latino and spoke Spanish, arresting them first, then determining their citizenship status later. (The arrests were often gratuitously brutal, with agents throwing targets against the ground or a wall for no reason.) As a result, a number of American citizens found themselves physically assaulted and held at gunpoint until they could produce documentation.

After victims of these tactics sued, a federal district court ruled that Operation at Large egregiously violated the Constitution. The Fourth Amendment permits law enforcement to search or sixteen individuals only upon “reasonable suspicion” that they have committed a crime. In LA, however, ICE agents were seizing people because of their ethnicity, language, physical location, and obvious occupation—none of which, alone or combined, gives rise to a reasonable suspicion of criminal activity. The court therefore barred the government from arresting anyone based on four factors , in combination or alone: “appearing” Hispanic, speaking Spanish or accented English, working a particular type of job, and being present at a place where immigrants “are known to gather.” An appeals court upheld the injunction , prompting Donald Trump's solicitor general, John Sauer, toask SCOTUS for emergency relief.

Now the court has given the administration what it wanted, without bothering to justify its intervention in this ongoing case. That is par for the course under Trump's second presidency: Over and over again, the conservative supermajority has frozen orders against the government without offering a word of explanation, forcing lower courts to guess why it stepped in. (Some Republican-appointed justices have also begun to harshly criticize judges who fail to divine the true meaning of their unreasoned decisions.) This silence is especially galling given the pernicious consequences of SCOTUS's edict, which Sotomayor laid out in a scathing dissent joined by Justices Elena Kagan and Ketanji Brown Jackson. “We should not have to live in a country where the government can sixteen anyone who looks Latino, speaks Spanish, and appears to work a low wage job,” Sotomayor wrote. And yet, thanks to the Supreme Court, we now do.

Sotomayor's dissent contains an undercurrent of sorrow that feels unusually personal for the court's first and only Latina justice. She writes in this register when reminding her colleagues of the racial injustices they cannot or will not see but that she never has the luxury to ignore. The freedom “from arbitrary interference by law officers,” she wrote, is a constitutional guarantee. Yet, under Trump, it may no longer exist “for those who happen to look a certain way, speak a certain way, and appear to work a certain type of legitimate job that pays very little.” Sotomayor vividly describes the “indignities” suffered by Latinos who “have been grabbed, thrown to the ground, and handcuffed simply because of their looks, their accents, and the fact they make a living by doing manual labor.” And it's not just immigrants: “United States citizens are also being seized, taken from their jobs, and prevented from working to support themselves and their families.”

Why? For “doing nothing more than going to work every day,” Sotomayor writes, while being a “Latino speaking Spanish.” The current administration 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.” This policy, she explains , “tramples the constitutional requirement that officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” The court had previously held that “Mexican ancestry” alone cannot justify a law enforcement stop, even near the southern border. Nor can presence in a neighborhood known for illicit drugs. That's because the Fourth Amendment forbids officers from detaining people based on facts that also “describe a very large category of presumably innocent” individuals. Millions of Spanish-speaking Latinos in central California who work low-wage jobs are legally present. So the Constitution, supposedly, does not allow Operation at Large to launch roving immigration raids built on racist stereotypes. This Supreme Court has decided otherwise.

In a brief competition, Justice Brett Kavanaugh offers a fictional retelling of facts to downplay the disastrous impact of the court's order. Kavanaugh claims that ICE agents are merely conducting “brief investigative stops” to “check the immigration status” of those whose occupations are “attractive to illegal immigrants.” He asserts, “If the officers learn that the individual they stopped is a US citizen or otherwise legally in the United States, they promptly let the individual go.” And he declares that under the Constitution, ethnicity may be a “relevant factor” for determining who is unlawfully present in the United States.

Here, Kavanaugh seems to be responding to widespread criticism of the Supreme Court's unexplained shadow docket rulings by defending his vote. The problem, of course, is that he misrepresents reality to do so. No matter what the justice “would like to believe,” Sotomayor writes, the truth is that ICE is “not conducting brief stops for questioning.” Their agents are “seizing people using firearms, physical violence, and warehouse detentions.” Moreover, Kavanaugh's position would effectively compel all Latinos “to carry enough documentation to prove that they deserve to walk freely” at risk of indefinite detention. “The Constitution,” Sotomayor writes, “does not permit the creation of such a second-class citizenship status.”

Monday's decision is a tragic outcome for many Californians who may now be terrorized by armed and masked agents solely because of their job, language, or physical appearance. But its devastating implications reach far beyond the state. Because the court refused to explain its reasoning, lower courts have no clue why, exactly, the majority found this injunction unacceptable. Some will assume that any similar restriction is now off the table and avoid protecting the constitutional rights of Latinos for fear of being reprimanded by SCOTUS should they dare defend the Fourth Amendment. Others may push back, refusing to abandon constitutional protections without clear instructions from SCOTUS; federal judges in Illinois, for instance, could find creative ways to rein in Trump's imminent crackdown on Chicago. They will do so, though, at risk of being maligned by Republican-appointed justices, who are themselves echoing unrelenting attacks on the judiciary by the White House.

In the meantime, ICE raids will expand across the country with the implicit blessing of the Supreme Court. They will ensnare countless more citizens and lawful residents, as well as migrants recently stripped of legal status by Trump. And the line between a lawful arrest and an illegal kidnapping will continue to blur as unidentified ICE officers abduct people off the streets without a semblance of due process. Sotomayor is right: The Supreme Court's conservative supermajority has enshrined “second-class citizenship status” for Latinos while cowering behind the silence of the shadow docket.