I am not sure this analysis fully engages with the factual record of what ICE has been doing in Southern California. From quite a bit of reporting, and from the fact that many US citizens have been detained by ICE, federal law enforcement is in fact arresting large numbers of people based only on facts i-iv.
I think the interpretation that the injunction basically just restates the existing understanding of the Fourth Amendment is the correct one. The district court put the injunction in place in response to unconstitutional stops in Southern California early in the Trump administration based only on race, language, location and employment. The injunction bars those stops from continuing. I don't see how that makes the injunction toothless, though. What is the alternative for the plaintiffs to get relief? This injunction seems like the straightforward first step in a case like this.
That was the biggest issue with the Kavanaugh dissent in my opinion as well. It does not really engage with the actual conduct of ICE at issue, and seems to assume that ICE is generally acting lawfully. But what we see is indiscriminate sweeps of Latinos, and many citizens detained arbitrarily.
If ICE (a) illegally uses excessive force in arresting an undocumented alien and (b) rapidly deports her / him, there’s no practical chance of pursuing any type of Bivens remedy. That’s essentially immunity to use force. The Kavanaugh concurrence is unbelievably naive.
I am not sure this analysis fully engages with the factual record of what ICE has been doing in Southern California. From quite a bit of reporting, and from the fact that many US citizens have been detained by ICE, federal law enforcement is in fact arresting large numbers of people based only on facts i-iv.
I think the interpretation that the injunction basically just restates the existing understanding of the Fourth Amendment is the correct one. The district court put the injunction in place in response to unconstitutional stops in Southern California early in the Trump administration based only on race, language, location and employment. The injunction bars those stops from continuing. I don't see how that makes the injunction toothless, though. What is the alternative for the plaintiffs to get relief? This injunction seems like the straightforward first step in a case like this.
That was the biggest issue with the Kavanaugh dissent in my opinion as well. It does not really engage with the actual conduct of ICE at issue, and seems to assume that ICE is generally acting lawfully. But what we see is indiscriminate sweeps of Latinos, and many citizens detained arbitrarily.
https://www.npr.org/2025/07/04/nx-s1-5438396/antagonized-for-being-hispanic-growing-claims-of-racial-profiling-in-la-raids
The problem the article cites with the district court’s insertion “except as permitted by law” in the TRO was removed by the court of appeals. The court removed that phrase because it was “impermissibly vague”. See opinion at 38a. https://www.supremecourt.gov/DocketPDF/25/25A169/369163/20250807171848424_Perdomo_Stay_Appl.pdf.
If ICE (a) illegally uses excessive force in arresting an undocumented alien and (b) rapidly deports her / him, there’s no practical chance of pursuing any type of Bivens remedy. That’s essentially immunity to use force. The Kavanaugh concurrence is unbelievably naive.
"constraint by affirmation"
Sure, seems as likely as "a new professionalism."