When the Supreme Court weighed in on Noem v. Vasquez Perdomo last month, the Republican-appointed justices cleared the way for federal immigration officials to use racial profiling. A concurring opinion from Justice Brett Kavanaugh proved to be especially important.
As the Trump appointee concluded, ICE agents can legally detain someone if they have a “reasonable suspicion” that the person might be undocumented. Kavanaugh envisioned a real-world model that was efficient and effective.
“[R]easonable suspicion means only that immigration officers may briefly stop the individual and inquire about immigration status,” the justice wrote. “If the person is a U.S. citizen or otherwise lawfully in the United States, that individual will be free to go after the brief encounter. … If the officers learn that the individual they stopped is a U.S. citizen or otherwise lawfully in the United States, they promptly let the individual go.”
In legal circles, this quickly became known as “Kavanaugh stops.”
At first blush, some might see the process the justice described as reasonable: ICE agents stop suspects; the suspects prove they’re here legally; and the suspects then go about their day. What’s so bad about a “brief encounter”?
In practice, quite a bit.
The New York Times recently reported, for example, that “many” U.S. citizens have been taken into custody. “While many of those detained have immediately declared their U.S. citizenship to officers, they have routinely been ignored. … In some cases they have been handcuffed, kept in holding cells and immigration facilities overnight, and in at least two cases held without access to a lawyer or even a phone call.”
But how many is “many”? ProPublica tried to document the scope of the problem:
Americans have been dragged, tackled, beaten, tased and shot by immigration agents. They’ve had their necks kneeled on. They’ve been held outside in the rain while in their underwear. At least three citizens were pregnant when agents detained them. One of those women had already had the door of her home blown off while Department of Homeland Security Secretary Kristi Noem watched. About two dozen Americans have said they were held for more than a day without being able to phone lawyers or loved ones. According to ProPublica’s tally, which has not been independently verified by MSNBC, more than 170 American citizens have been held against their will because federal agents, acting at Donald Trump’s behest, suspected them of being undocumented immigrants. “Among the citizens detained are nearly 20 children, including two with cancer,” the report added, while acknowledging that this tally “is almost certainly incomplete.” Despite Kavanaugh’s confidence in a simple and efficient process, these Americans’ encounters with ICE agents were not “brief,” and officials did not “promptly” let these individual go. Asked about this on Friday morning, House Speaker Mike Johnson said he didn’t know anything about it. Maybe someone should show him a copy of the ProPublica report.
Steve Benen is a producer for "The Rachel Maddow Show," the editor of MaddowBlog and an MS NOW political contributor. He's also the bestselling author of "Ministry of Truth: Democracy, Reality, and the Republicans' War on the Recent Past."
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