In the immigration context, national origin is an essential element of the offense.

Once again, the Supreme Court has stepped in to prevent a rogue district judge from hamstringing the executive branch in performing core executive functions under Donald Trump. And once again, the Court’s conservative majority has dispatched this order without explanation, over an angry and overwrought dissent from the Court’s liberals. This time, however, Justice Brett Kavanaugh stepped up to explain what was going on.

The Court’s order this morning in Noem v. Vasquez Perdomo stayed an August 1 order by district judge Maame Ewusi-Mensah Frimpong of the Central District of California, a Biden appointee and former Obama Justice Department official. The order will thus have no effect unless and until the Ninth Circuit rules in the case — perhaps only a brief reprieve, given that the Ninth Circuit previously declined to stay Judge Frimpong’s initial temporary restraining order in the case.

The crux of the case is whether the government may stop individuals in Los Angeles on suspicion of being illegal immigrants on the basis of four 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.” Justice Sonia Sotomayor’s dissent noted that the order attempted to enjoin Immigration and Customs Enforcement (ICE) only from stops based solely on those four criteria, but as Kavanaugh noted, there are inherent problems in the judiciary trying to prospectively micromanage law enforcement in such fashion: “Even if the Government had a policy of making stops based on the factors prohibited by the District Court, immigration officers might not rely only on those factors if and when they stop [the lawsuit’s named] plaintiffs in the future,” and “the District Court’s injunction threatens contempt sanctions against immigration officers who make brief investigative stops later found by the court to violate the injunction. The prospect of such after-the-fact judicial second-guessing and contempt proceedings will inevitably chill lawful immigration enforcement efforts. . . . Judges are not appointed to make those policy calls.” As Kavanaugh added, particular plaintiffs do not have standing to enjoin the government in advance from stops that may or may not involve them and may or may not, depending on the circumstances, violate the Fourth Amendment.

Sotomayor harped repeatedly on ICE agents’ wearing masks and carrying weapons, none of which has anything to do with the lawfulness of immigration stops, and seethed:

[This] decision is yet another grave misuse of our emergency docket. We should not have to live in a country where the Government can seize anyone who looks Latino, speaks Spanish, and appears to work a low wage job. Rather than stand idly by while our constitutional freedoms are lost, I dissent. . . . The Government, and now the concurrence, has all but declared that all Latinos, U. S. 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.

In most situations, it’s reasonable to demand that law enforcement not take race, ethnicity, or national origin into account in stopping people, unless much more specific factors are involved — e.g., looking for a suspect who fits a particular description or as part of a longer checklist identifying members of a particular criminal organization built around racial/ethnic lines (e.g., if you were looking for Klansmen in Georgia in 1870, you’d look at white men of Civil War veteran age). We rightly demand that government meet an extremely high standard before drawing lines on the basis of race, and few government policies can meet that standard. But in the immigration context, national origin is an essential element of the offense. Most American citizens were born here; no illegal immigrants were. As Kavanaugh emphasized, blinding the government to the actual characteristics of the illegal immigrant population of Los Angeles elevates theory over practical reality in ways that no law enforcement agency could afford to do:

About 10 percent of the people in the Los Angeles region are illegally in the United States—meaning about 2 million illegal immigrants out of a total population of 20 million. Not surprisingly given those extraordinary numbers, U. S. immigration officers have prioritized immigration enforcement in the Los Angeles area. The Government sometimes makes brief investigative stops to check the immigration status of those who gather in locations where people are hired for day jobs; who work or appear to work in jobs such as construction, landscaping, agriculture, or car washes that often do not require paperwork and are therefore attractive to illegal immigrants; and who do not speak much if any English. . . .

To stop an individual for brief questioning about immigration status, the Government must have reasonable suspicion that the individual is illegally present in the United States. . . . Reasonable suspicion is a lesser requirement than probable cause. . . . Whether an officer has reasonable suspicion depends on the totality of the circumstances. . . . Here, those circumstances include: 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. [Citations omitted.]

Sotomayor rejoined:

The concurrence acknowledges that the Government cannot stop someone based solely on apparent ethnicity, but seems to suggest that combining an individual’s ethnicity with any one of the other factors could add up to reasonable suspicion. . . . That ignores the obvious reality that ethnicity and language are often intertwined, so relying on only those two factors is no different than relying on ethnicity alone. (Even the Government does not go so far as to argue that relying solely on ethnicity and language would constitute reasonable suspicion.) From here, adding on the fact that someone appears to work a low paying job does little to move the needle either; the concurrence fails to explain how that fact helps an agent differentiate between someone who has legal status and someone who does not considering both kinds of individuals may work those jobs.

Now, first of all, notice that Sotomayor persistently switches to “low paying job” rather than focusing on the particular types of job sites that Kavanaugh mentions as the targets of ICE’s dragnets, i.e., those that pick up day laborers and require no paperwork. Notice also that when she says that “over 37 percent of the population of Los Angeles County speaks Spanish at home, and over 55 percent speak a language other than English,” that’s not the same as identifying people who speak little or no English, the subset most likely to be illegally in the country. What’s striking is that she never even attempts to suggest how agents could identify illegal immigrants in large numbers even knowing that they are present in extremely large numbers. Her entire inquiry is on how the government’s criteria could lead to stopping people who are not here illegally, without the slightest acknowledgment that the legal standard does not require a criteria for stops that is guaranteed to briefly detain for questions only the guilty.