Ethnicity and language are taken into account when patently relevant to whether a crime has been committed, but they’re never the sole reason for detention.

There should be no doubt as to the correctness of the Supreme Court’s decision today allowing immigration agents to conduct raids of facilities in which it is suspected that illegal aliens are working or hiding. California Democrats and others on the anti-borders, pro–illegal immigration left, whose claims are unfortunately echoed by the Court’s three progressive justices, have engaged in the worst sort of demagogy.

This is not about whether it is a wise policy to carry out such raids. They are an inevitable aspect of prioritizing immigration enforcement. It violates our law to enter and working in the United States without statutory authorization. The executive branch’s obligation is to enforce the laws. And if the administration granted illegal-alien workers a de facto amnesty that Congress had not enacted into law (as the Biden and Obama administration did), that would both be unconstitutional and encourage swarms of foreigners to try to enter our country illegally – which, in turn, would reduce the resources available to process the entry of foreigners who comply with our laws.

Obviously, there are many more illegal aliens (perhaps 20 million, perhaps more) than federal enforcement resources (Congress has absurdly underfunded the latter). Ergo, priorities have to be established. Sensible people would rather see Immigration and Customs Enforcement (ICE) arrest and remove hardened criminal aliens before scooping up and deporting people who are just making a living doing hard work that we need done. We can sympathize with such people while still recognizing that their presence and conduct are illegal. We can also reasonably argue about how much effort should be expended in rounding up and deporting them. What can’t credibly be argued, however, is that ICE agents are flouting the Constitution or immigration law by doing so.

Concurring in today’s 6–3 per curiam ruling, Justice Brett Kavanaugh rightly explains that our law — statutory, regulatory, and jurisprudential — explicitly permits immigration agents to interrogate a person believed to be an alien about his right to be in the U.S., and to detain the person for questioning if the agent reasonably suspects “based on specific, articulable facts,” that the person is an illegal alien.

Advocates for illegal immigrants complain that people are thus being apprehended in dragnets based solely on their ethnicity and Spanish language — ignoring, naturally, that many of the agents and police in California who are enforcing the laws are themselves of Latino background and fluent Spanish speakers. But no one is rounded up solely based on ethnicity.

As Justice Kavanaugh recounted, with the greater Los Angeles area as the center of the dispute, District Judge Maame Ewusi-Mensah Frimpong (a Biden appointee)

enjoined U. S. immigration officers from making investigative stops in the Los Angeles area when the stops are based on the following factors or combination of factors: (i) presence at particular locations such as bus stops, car washes, day laborer pickup sites, agricultural sites, and the like; (ii) the type of work one does; (iii) speaking Spanish or speaking English with an accent; and (iv) apparent race or ethnicity.

Putting aside that the plaintiffs in the case lack standing, the question whether agents have reasonable suspicion depends, under long settled law, on the totality of the circumstances. Unavoidably, ethnicity and lack of English language proficiency are among the articulable facts from which an investigator may draw a reasonable conclusion that a person in Southern California may be in the country illegally. No one can permissibly be detained on that basis alone. To the contrary, Kavanaugh noted, the totality of the circumstances often includes the following:

that there is an extremely high number and percentage of illegal immigrants in the Los Angeles area; that those individuals tend to gather in certain locations to seek daily work; that those individuals often work in certain kinds of jobs, such as day labor, landscaping, agriculture, and construction, that do not require paperwork and are therefore especially attractive to illegal immigrants; and that many of those illegally in the Los Angeles area come from Mexico or Central America and do not speak much English.

Moreover, when the agents confront a person whose situation seems to match these circumstances, and the person identifies himself as an American or an alien lawfully present in our country, the police immediately let the person go. The people arrested are those who (a) properly aroused reasonable suspicion (not probable cause or guilt beyond a reasonable doubt; again, the standard for a brief investigatory stop is reasonable suspicion); and (b) turn out to be in the country illegally.

When I prosecuted cases against the Mafia and jihadist terrorism, it was an unavoidable fact that “made” members of the Mafia were (and are) of Italian descent, and that jihadists were (and are) Muslims (jihad being a tenet of Islam and central to fundamentalist Islam’s calls to violence). The fact that an investigator cannot help but notice these articulable facts as part of — but never the totality of — the reasons to be suspicious is not racism. It is common sense.

What’s more, by law and training, it is drilled into agents to understand that they may not rest suspicions solely on race, ethnicity, religion, or other such categories. There must be articulable reasons to believe a crime may be being committed — facts that would go to whether the conduct at issue violated the law, not the immutable, cultural, or belief-system-based characteristics of the person. A person’s characteristics can never be the sole reason for triggering an investigation, but neither do they establish immunity from investigation.

That is all the Court ruled today, and the ruling is sound.