The Supreme Court rode to the rescue of President Trump’s immigration crackdown on Monday, giving a green light to the kind of aggressive tactics ICE used in its “mass deportation” arrests in Los Angeles earlier this year.
The justices put on hold lower court rulings that held U.S. Immigration and Customs Enforcement was violating the Constitution when it used race, ethnicity, languages and locations as factors in determining whom to question about their legal status.
Justice Brett M. Kavanaugh said that while indicators like ethnicity can’t be the sole consideration, they can be a “relevant factor” when considered along with others.
“Under this court’s precedents, not to mention common sense, those circumstances taken together can constitute at least reasonable suspicion of illegal presence in the United States,” he wrote in an opinion explaining his reasoning.
The ruling is a significant win for the administration, which had complained that lower courts were intruding deeply into the government’s ability to carry out Mr. Trump’s plans for mass deportations.
Los Angeles became Ground Zero for that effort in early June, when the government surged manpower to conduct arrests — and the community erupted in riots.
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Mr. Trump responded by federalizing and deploying National Guard and U.S. Marines, igniting still more legal battles over presidential war and policing powers that continue to brew in lower courts.
The ICE tactics case, meanwhile, goes to the heart of how and when immigration officers are able to approach suspects.
Judge Maame Frimpong, a Biden appointee to the court in Los Angeles, citing news reports, concluded that ICE and other federal agents deputized to help were targeting people because they spoke Spanish or were working or hanging out at car washes. She said that was not sufficient for “reasonable suspicion” to make a law enforcement stop.
She issued an injunction blocking ICE from making arrests that she said would violate the 4th Amendment’s ban on unreasonable stops and searches.
The 9th U.S. Circuit Court of Appeals upheld her ruling, saying ICE has been too secretive about what, exactly, it considers valid justification for a stop. The judges said the evidence they had seen, largely from news accounts, was not a compelling justification.
U.S. Solicitor General D. John Sauer, defending Mr. Trump, told the Supreme Court those lower rulings muddied the waters, making it unclear what sort of enforcement ICE can carry out and leaving all ICE officers worried they could face punishment for stopping someone.
He said officers must have some leeway if Mr. Trump, particularly in the Los Angeles area, which is home to the largest concentration of illegal immigrants in the country.
“The district court’s injunction now significantly interferes with federal enforcement efforts across a region that is larger and more populous than many countries and that has become a major epicenter of the immigration crisis,” he said.
Justice Sonia Sotomayor issued a searing dissent from Monday’s ruling, saying her colleagues were creating an exception to established 4th Amendment norms when it came to “those who happen to look a certain way, speak a certain way and appear to work a certain type of legitimate job.”
“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,” she wrote, joined by the court’s other two Democratic appointees.
She labeled ICE’s action in Los Angeles “raids” — a term ICE vehemently rejects.
And she also broke with the usual Supreme Court practice where justices say they “respectfully dissent” from a ruling. Instead, twice, she flatly said, “I dissent.”
Justice Kavanaugh, though, said there were multiple reasons why the court couldn’t side with the challengers.
For one, he said, they likely lacked standing because they couldn’t prove they were liable to be targeted in future immigration actions — and certainly couldn’t prove they would be stopped only because of their ethnicity or location.
He said they can sue after the fact for damages if they were wrongly stopped, but not as a preemptive measure.
And he said the government likely has the better of the 4th Amendment arguments, given the realities of illegal immigration and Los Angeles.
He defended ICE’s approach using a “totality” of 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,” Justice Kavanaugh wrote.
He said if Justice Sotomayor were to prevail, it would mean sidestepping or overturning several Supreme Court precedents.
Los Angeles Mayor Karen Bass said the ruling would reverberate across the country, affecting “every person in every city.”
“This decision will lead to more working families being torn apart and fear of the very institutions meant to protect – not persecute – our people,” she said.
Soon after the court’s ruling Monday, ICE announced a new deportation “blitz” in Chicago where it said illegal immigrant criminals are being protected by sanctuary policies.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.