Amicus | Dear Justice Kavanaugh, “I’m American, Bro” | What Next

Key Takeaways

The Supreme Court's "Noem v. Vasquez-Perdomo" order on its shadow docket allows racial profiling by ICE patrols.
This unargued decision may usher in a "show your papers" era, particularly for individuals perceived as immigrants.
The ruling disregards lower court factual findings and established legal precedent against race as a factor in stops.
It expands the "prerogative state," creating legal ambiguity and inconsistent application of law for citizens and non-citizens.

The Supreme Court issued an order in "Noem v. Vasquez-Perdomo" on its emergency docket at 2:35, allowing a form of racial profiling by roving ICE patrols without explanation.
Justice Kavanaugh's concurrence, joined by no other justices, argued for the validity of such stops, even when they involve U.S. citizens.
The decision is described as unargued, unreasoned, and unsigned, potentially ushering in a "show your papers" era for individuals perceived as immigrants.

ICE enforcement actions, like "Operation Last," have disrupted daily life in Los Angeles, leading to fear among residents since June 6th.
An incident at a Pasadena park involved ICE arrests of fruit vendors and individuals at a bus stop, resulting in the cancellation of all weekend park activities.
Fear of arrest has impacted the livelihoods of street vendors and food truck operators, with these effects expected to continue following the Supreme Court's ruling.
Local government has provided financial assistance to residents unable to work due to the risk of arrest while commuting or performing daily activities.

A district court found ICE officers detained individuals without individualized suspicion, relying on factors like Latino appearance, Spanish language, and locations such as car washes.
This practice, documented through declarations and individual accounts, led to the detention of U.S. citizens multiple times.
The legal doctrine of reasonable suspicion, originating from Terry v. Ohio in 1968 and extended to immigration enforcement in Brignoni-Ponce (1973), requires specific and articulable facts individualized to the person being detained.

Justice Kavanaugh's concurrence in the "Noem v. Vasquez-Perdomo" case is seen as a dramatic expansion of existing legal doctrine.
The guest argues Kavanaugh's reasoning relies on assumptions rather than evidence, particularly regarding the prevalence of undocumented immigrants in certain industries.
Kavanaugh's characterization of encounters with roving ICE patrols is found to be detached from the reality of the case record.
He asserts that brief questioning about immigration status is permissible, even if it leads to further proceedings for those unlawfully present.

The Supreme Court's opinion is criticized for its disconnect from the case record, which documented instances of excessive force and prolonged detention that should have been enjoined.
Appellate courts typically require clear error to reverse factual findings, with emergency review being even more deferential; however, the Supreme Court has been disregarding this doctrine in shadow docket cases.
Justice Sotomayor's dissent describes an incident where immigration agents detained a Latino U.S. citizen, questioning him multiple times and physically restraining him, contrasting sharply with Justice Kavanaugh's description.
The current practice deviates significantly from established legal doctrine, particularly in its use of the shadow docket.

A video of a U.S. citizen, Gavidia, showed agents stopping him based on his appearance, despite his English and assertion of American citizenship, highlighting the role of race.
The Ninth Circuit's 2000 ruling, which prohibited race as a factor in immigration stops, had been the law in the Western U.S. for 25 years.
The Supreme Court's recent shadow docket order permits race as a consideration, a move described as startling and a departure from established legal precedent.
This creates a contradiction where race cannot be a factor in college admissions but is permissible for detaining individuals based on race.

The legal concept of 'standing' is applied inconsistently by Justice Kavanaugh in the "Noem v. Vasquez-Perdomo" case compared to affirmative action cases.
A previous Supreme Court case, Los Angeles v. Lions, denied standing to a plaintiff alleging risk of chokeholds, citing the need to violate a traffic law, a logic questioned by the speakers.
The lack of reasoned opinions in the shadow docket allows for a potentially broad interpretation that greenlights racial profiling.
Decisions without explanation do not constitute law, contrasting with the need for reasoned arguments in legal rulings.

The "Noem v. Vasquez-Perdomo" ruling extends the 'prerogative state' to individuals of Hispanic or Latino appearance, Spanish speakers, and potentially others dressed in work clothes in public spaces.
This affects a significant portion of the Southern California population, subjecting them to rules not based on normative legal principles.
The lack of clear legal guidance means lower court judges and lawyers are left to guess the law's application, creating a lawless regime.
The discussion calls for greater creativity in resistance, urging politicians in California and Los Angeles to push back more assertively.