The Supreme Court has been forced, once again, to step in and overturn an injunction issued by a Biden-appointed lower-court judge, this time in Los Angeles, where open-borders activists sought to ban virtually all immigration enforcement in Southern California. Justice Brett Kavanaugh took the unusual step of offering a concurrence shedding light on the majority’s opinion, a welcome practice to counter hysterical rhetoric from the Democratic Party and its media allies.
In June, Immigration and Customs Enforcement agents began a systematic effort to remove illegal immigrants from the Los Angeles region, where it is estimated that 2 million of the area’s 20 million people are in the country illegally. This included serving warrants at garment factories in the fashion district and questioning suspected illegal immigrants at places of business known to employ illegal immigrants, including construction, landscaping, and car washes. Thousands of illegal immigrants were identified and arrested as a result.
Subsequently, a handful of U.S. citizens briefly detained by federal agents, and open-borders groups such as the American Civil Liberties Union and the United Farm Workers, sued the Department of Homeland Security in court, asking for an end to immigration enforcement actions. U.S. District Judge Maame Ewusi-Mensah Frimpong, a Biden appointee, sided with the plaintiffs and issued a sprawling injunction prohibiting federal law enforcement from stopping anyone based on the suspect’s race or ethnicity.
The order issued by the Supreme Court this week is not a final decision in the case. Instead, it is merely a ruling on whether the lower court’s injunction should stay in place while the issue itself continues to be litigated. Such so-called “shadow docket” cases usually do not include a majority decision. But Kavanaugh’s concurrence provided a window into the majority’s thinking.
Kavanaugh first noted that the plaintiffs have no standing to enjoin future law enforcement activities. Over 40 years ago, in City of Los Angeles v. Lyons, the Supreme Court held that while plaintiffs can seek relief for proven past violations of their Fourth Amendment rights, they cannot enjoin programmatic law enforcement behavior unless they can prove they will be wronged again in a similar way.
Here, one of the defendants, Jason Gavidia, complains that agents detained him in a tow yard where he was working on his car. When he could not name the hospital where he was born, they took his phone and pushed him against a metal-gated fence, put his hands behind his back, and twisted his arm. The agents only released Gavidia after he showed them his REAL ID.
To the extent Gavidia believes his Fourth Amendment rights have been violated by the agents, he is free to pursue a lawsuit against the government under the Federal Tort Claims Act. But just because these officers may have used faulty criteria for detaining Gavidia in this one case does not mean a federal judge has the power to end all immigration enforcement stops in the Los Angeles region.
The Immigration and Nationality Act authorizes agents to “interrogate any alien or person believed to be an alien” and may briefly detain a person if they have “reasonable suspicion” they are in the country illegally. This “reasonable suspicion” test is not as burdensome as the more strict “probable cause” test and can include factors such as whether the encounter happens at locations known for illegal immigrant activity, lack of English proficiency, and race or ethnicity.
Democrats and their media allies jumped on this portion of the “reasonable suspicion” test to claim that the Supreme Court has endorsed “racial profiling.” But that simply isn’t true. Kavanaugh clearly states in his concurrence, “To be clear, apparent ethnicity alone cannot furnish reasonable suspicion.” But this plain statement did not stop the New York Times from telling readers that the Supreme Court had just endorsed “indiscriminate stops based on factors like ethnicity.”
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Immigration is a tough issue. Immigration enforcement is a tough job. The Biden administration simply chose not to enforce our nation’s immigration laws at all. As a direct result, our southern borders were flooded with over 5 million illegal immigrants. The electorate chose President Donald Trump in no small part because he promised to do the tough job of enforcing our immigration laws again. Federal law enforcement officers are not going to be perfect when enforcing our immigration laws. But we have existing checks in place to restrain their behavior, such as the Federal Tort Claims Act.
It is not acceptable for one unelected judge appointed by Biden to take it upon herself to decide that all immigration law enforcement must be stopped immediately. It was a ludicrous decision when issued, and the Supreme Court had every right to strike it down.