Race, the Fourth Amendment, and Immigration in Trump v. Illinois

What to make of Justice Kavanaugh's seemingly inconsistent statements in separate concurrences.

Over at the Interim Docket Blog on SCOTUSblog, I’ve published a couple of posts that address what Justice Kavanaugh said in Trump v. Illinois about when using race as a factor in immigration stops might violate the Fourth Amendment. For readers who have missed them, I’m combining the relevant analysis from both posts into one here.

[From the first post:]

Justice Kavanaugh’s footnote 4 of his concurrence in the judgment in Trump v. Illinois is a bit puzzling. He goes out of his way to note:

The State and the Government disagree about whether the immigration officers have violated the Constitution in making certain immigration stops and arrests. The basic constitutional rules governing that dispute are longstanding and clear: The Fourth Amendment requires that immigration stops must be based on reasonable suspicion of illegal presence, stops must be brief, arrests must be based on probable cause, and officers must not employ excessive force. Moreover, the officers must not make interior immigration stops or arrests based on race or ethnicity. Cf. Whren v. United States, 517 U. S. 806, 813 (1996) (“[T]he Constitution prohibits selective enforcement of the law based on considerations such as race”). This application does not require us to delve into the parties’ underlying dispute and to determine whether any particular immigration encounter or series of encounters in Illinois has violated those basic constitutional principles.

This footnote is a little hard to square with his concurrence in Noem v. Vasquez Perdomo, where he said the following:

To be clear, apparent ethnicity alone cannot furnish reasonable suspicion [for an immigration stop]; under this Court’s case law regarding immigration stops, however, it can be a “relevant factor” when considered along with other salient factors.

I suppose the two statements are reconcilable if one interprets “based on” as “based on alone,” but in my view a more natural sense of that phrase is that a decision is “based on” a fact if that fact is a relevant (and perhaps decisive) factor in the decision.

Given the criticism Justice Kavanaugh’s opinion in Perdomo received—and the critics’ coinage of the derisive term “Kavanaugh Stops”—I wonder if this footnote (which I don’t think was strictly necessary to include) was an attempt to walk back his opinion in that case a tiny bit. Justice Kavanaugh seems more interested than other justices in using his opinions to speak to potential critics (which I actually find admirable) and that impulse may be playing a role here.

[From the second post:]

After my last post, co-blogger Will Baude and another reader asked offline whether perhaps the word “interior” was doing work in Justice Kavanaugh’s footnote in Trump v. Illinois as a way to distinguish the seeming inconsistency between what he said there and his earlier discussion of the permissibility of relying on race in immigration stops in Noem v. Perdomo.

As a reminder, what he said Trump v. Illinois (with the key word in bold):

The basic constitutional rules governing that dispute are longstanding and clear: The Fourth Amendment requires that immigration stops must be based on reasonable suspicion of illegal presence, stops must be brief, arrests must be based on probable cause, and officers must not employ excessive force. Moreover, the officers must not make interior immigration stops or arrests based on race or ethnicity. Cf. Whren v. United States, 517 U. S. 806, 813 (1996) (“[T]he Constitution prohibits selective enforcement of the law based on considerations such as race”). This application does not require us to delve into the parties’ underlying dispute and to determine whether any particular immigration encounter or series of encounters in Illinois has violated those basic constitutional principles.

Is it possible that Justice Kavanaugh meant to suggest that the principle he announced in Perdomo only applies in non-“interior” contexts—presumably, areas near the border? A few thoughts.

First, Justice Kavanaugh’s statement in Perdomo does not contain any qualification suggesting he intended to limit the broad language there to non-“interior” areas.

But would such a distinction draw support in Fourth Amendment case law? The answer is quite possibly yes. The case that Justice Kavanaugh cited in Perdomo for the proposition that race can be a “relevant factor” in immigration stops, United States v. Brignoni-Ponce, explicitly considered the scope of “the United States Border Patrol’s authority to stop automobiles in areas near the Mexican border.” And that case explored factors that “may be taken into account in deciding whether there is reasonable suspicion to stop a car in the border area.”

Next, could that distinction help cabin what Justice Kavanaugh said on the facts of Perdomo itself? Maybe? The “border area” in Brignoni-Ponce was “a fixed checkpoint on Interstate Highway 5 south of San Clemente.” San Clemente itself is about 74 miles from the San Ysidro border crossing. Los Angeles is a little less than twice as far from the border—about 134 miles from the border crossing. So maybe you could argue that, to the extent that Brignoni-Ponce establishes a border-only rule, that rule would extend another hour-plus up Interstate 5 to cover Perdomo too—and that outside of the “border” context, authorities can’t rely on race at all in conducting stops.

Maybe, though I’m not sure that the distinction works on the facts of Trump v. Illinois. How might we define “interior” versus “border”? One place to start is immigration law. I’m not an immigration expert, but as I understand it: immigration law gives immigration authorities the power, among others, to “within a reasonable distance from any external boundary of the United States, to board and search for aliens any vessel within the territorial waters of the United States and any railway car, aircraft, conveyance, or vehicle,” and DHS has interpreted “reasonable distance from any external boundary” to mean “within 100 air miles from any external boundary of the United States.” That includes Los Angeles, but it also includes Chicago (given its proximity to Canada). So it’s at least arguable that Chicago is no more “interior” immigration-wise than LA is (although there may be far more illegal border crossings on the Southern border).

Moreover, if Justice Kavanaugh wanted to put forward that somewhat narrower view about the power to consider race in the Fourth Amendment/immigration context why not just. . . say so in Trump v. Illinois? It would be easy for him to have included a “see” or even “cf.” citation with a parenthetical quote from Brignoni–Ponce like the ones I offer above.

Instead, he cf.’ed to Whren v. United States, which is a Fourth Amendment case that most people read (critically) as saying that racial profiling doesn’t violate the Fourth Amendment at all, even if it might violate the Equal Protection Clause. (“We of course agree with petitioners that the Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment.”).

Justice Kavanaugh is a careful writer, so presumably he included the word “interior” for a reason. But I’m still left puzzled.

This highlights an ever-present tension in the Court’s interim rulings. Unexplained decisions are frustrating for parties, lower courts, and the public. But the more the justices write, on a tight timeline, the more questions and confusion they can create, which is frustrating too.