ICE wants power to break the Constitution and walk away

Of the dozens of district court orders stopping Trump administration violations of the U.S. Constitution, none is more important than the recent temporary restraining order to prevent ICE from violating the Constitution. On July 12, United States District Court Judge Maame E. Frimpong, in the Central District of California, issued a TRO, saying that she was presented with a "mountain of evidence" proving ICE's stops were without reasonable suspicion and were based on race. On Aug. 1, the United States Court of the Appeals for the Ninth Circuit in Perdomo v. Noem, upheld Judge Frimpong's order.

Now, the Trump administration is asking the Supreme Court to overturn these rulings. The brief it has filed is stunning in seeking to make ICE's actions unreviewable, even when it is clearly violating the Constitution. It is imperative that the court, which has overwhelming sided with President Trump, affirm the lower courts.

The law is clear that the Fourth Amendment requires that police, including ICE, must have reasonable suspicion to stop someone and probable cause to take them into custody. The law is also well established that police violate equal protection if they use race as a basis for deciding who to stop or arrest.

Judge Frimpong found that ICE was violating these basic constitutional requirements. The focus was on ICEs use of roving patrols to stop individuals. As the 9^th Circuit said, these "contact teams" "typical[ly] ... consist of three to five agents who contact individuals in public places such as streets, sidewalks, and publicly accessible portions of businesses." ICE official Kyle Harvick said, "Certain types of businesses, including carwashes, were selected for [contact team] encounters because past experience demonstrated that they are likely to employ persons without legal documentation. During operations in Los Angeles, [federal] agents temporarily detained individuals, and made arrests for immigration violations and federal criminal statutes." 

The plaintiffs include individuals who were stopped and detained solely based on their race. The plaintiffs also included associations, such as the United Farm Workers, the Los Angeles Worker Center Network, and the Coalition for Humane Immigrant Rights whose members have been stopped by ICE without reasonable suspicion and based on race.

The district court found that the plaintiffs were "likely to succeed in showing that the seizures are based upon the four enumerated factors" or a subset of them. Those factors are (1) apparent race or ethnicity; (2) speaking Spanish or speaking English with an accent; (3) presence at a particular location; and (4) the type of work one does. The district court then concluded that "sole reliance on the four enumerated factors does not constitute reasonable suspicion."

It is striking that the United States does not deny that ICE was doing this. Indeed, the 9^th Circuit, in upholding the district court's temporary restraining order against ICE, powerfully explained: "Defendants did not dispute the district court's finding that detentive stops requiring reasonable suspicion have occurred. They did not dispute that these detentive stops have been based solely on the four enumerated factors. They did not challenge the district court's findings that those stops are part of a pattern of conduct that has apparent official approval. And, finally, they did not meaningfully dispute the district court's conclusion that sole reliance on the four enumerated factors, alone or in combination, does not satisfy the constitutional requirement of reasonable suspicion."

In other words, the government does not deny that it is systematically and intentionally violating the Constitution. Instead, its argument is that the federal court lacks the authority to stop the unconstitutional conduct. It is no less than a claim that the government can blatantly violate the Constitution and no court can stop it.

The government makes three arguments in its Supreme Court brief. First, it contends that plaintiffs lack standing under City of Los Angeles v. Lyons because they cannot show that they personally will be stopped again by ICE. In Lyons, the Supreme Court held that a man who had been stopped by Los Angeles police and subjected to a chokehold lacked standing to challenge police use of chokeholds because he could not show it was likely that he would be choked again in the future. But the existence of an admitted ICE policy of stopping people based on race, speaking Spanish, presence at a particular location, and the type of work one does, makes it realistic that the plaintiffs will be stopped again by ICE agents. As the 9^th Circuit explained: "each of the individual plaintiffs has standing to seek injunctive relief because there is a 'realistic[] threat[]' that each will be stopped without reasonable suspicion as part of Defendants' Operation at Large."

The United States also argues in its brief to the Supreme Court that the district court order requiring compliance with the Constitution will unduly interfere with ICE. But ICE, like all parts of the government, must comply with the Fourth Amendment and equal protection. As the 9^th Circuit explained, "Defendants, of course, 'cannot reasonably assert that [they are] harmed in any legally cognizable sense by being enjoined from constitutional violations.'"

Finally, the government argues in the Supreme Court that a federal district court cannot issue a remedy that applies throughout the district. The government says a court cannot issue a district-wide relief, but rather only provide relief to the named plaintiffs. That makes no sense and would make it impossible to stop illegal government practices within a federal district. The government relies on Trump v. CASA. But that case disapproves of nationwide injunctions. The court did not discuss injunctions within a federal district. How can unconstitutional government actions ever be stopped if a court is limited to giving relief to just the parties in a lawsuit?

Of course, that is exactly what the Trump administration is trying to establish: the government can violate the Constitution and no court can stop it. That just cannot be right.

The district court rightly said that ICE could not use four factors in making a stop: (1) apparent race or ethnicity; (2) speaking Spanish or speaking English with an accent; (3) presence at a particular location; and (4) the type of work one does. All of these are innocuous and violate no law. ICE should not be able to use them to stop or apprehend people. Period.

The Supreme Court has sided with the Trump administration in many cases about separation of powers, such as the authority of the president to fire agency officials. I hope the court sees this case differently. It involves fundamental aspects of individual freedom and equality. In light of the undisputed facts in the case, the Supreme Court should not stay the district court's order. ICE must comply with the Constitution.