Trump Asks Supreme Court To Bless Racial Profiling by Immigration Agents

Normally, when the federal government is credibly accused of violating the Bill of Rights, a government lawyer will tell a federal judge that the alleged misconduct never happened. No way, your honor, the lawyer will protest. No agent of this government ever did anything like that!

But Noem v. Perdomo is not a normal case. Instead of disavowing the apparently unconstitutional behavior at its core, the Trump administration is openly embracing that behavior and urging the justices of the U.S. Supreme Court to do the same. It is the rare case in which both the government and its opponents agree that federal agents behaved in a specific way; the two sides only disagree about whether the specific behavior should count as good or bad.

The specific behavior at issue here is racial profiling. Multiple U.S. citizens have alleged that they were illegally seized by federal immigration agents in Los Angeles based solely on unlawful factors such as their “apparent race or ethnicity,” or the fact that they were “speaking Spanish or speaking English with an accent.”

And because these citizens (and others) “are likely to succeed in showing” that they were unlawfully seized in violation of the Fourth Amendment, the U.S. Court of Appeals for the 9th Circuit ruled earlier this month, the Trump administration has been temporarily blocked from employing such tactics as part of its immigration crackdown in the greater Los Angeles area.

In response, the Trump administration is now asking the Supreme Court to lift the block and let the roundups begin again. And in its latest legal filing, the administration made no efforts to deny that its agents will be relying on racial profiling when they’re back in the field.

Indeed, according to the emergency application to SCOTUS signed by Solicitor General John Sauer, “apparent ethnicity can be a factor supporting reasonable suspicion in appropriate circumstances.” Translation: If a federal agent thinks that someone “looks illegal,” the agent should be free to seize that person based only on his “apparent ethnicity” without setting off any sort of Fourth Amendment alarm bells.

Furthermore, in response to the argument that the federal government’s alleged racial profiling has resulted in an overly broad dragnet that inevitably ensnares innocent U.S. citizens, the Trump administration told the Supreme Court that “the high prevalence of illegal aliens should enable agents to stop a relatively broad range of individuals.”

Take a moment to let that sink in. The Trump administration wants the Supreme Court to give its blessing to a kind of systematic racial profiling that involves federal agents stopping a “broad range of individuals” based exclusively on factors such as the individuals’ “apparent ethnicity.” And if the rights of U.S. citizens—such as the Fourth Amendment right to be free from unreasonable searches and seizures regardless of your skin color—happen to get trampled along the way, the Trump administration’s message to those victimized citizens is this: tough luck.

To say the least, the Supreme Court has ample legal reasons to rule against the Trump administration’s admitted racial profiling on Fourth Amendment grounds. But will the Court rule that way? Alas, the answer to that question is not so clear.

While the current Supreme Court has been a Fourth Amendment defender in some cases, the Court has also been known to tip the scales in favor of law enforcement in others, including even in cases in which it was quite clear that federal agents violated someone’s constitutional rights.

So, the outcome of this case will likely turn on just how much deference the Supreme Court chooses to extend to Trump’s immigration agenda. For better or worse, we will learn the extent of that deference soon enough.

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