Trump Is Asking the Supreme Court to Bless Stephen Miller’s Racial Profiling

Sign up for the Slatest to get the most insightful analysis, criticism, and advice out there, delivered to your inbox daily.

On Thursday, the Trump administration asked the Supreme Court to lift an injunction blocking ICE’s mass arrest program based on unconstitutional racial profiling. The injunction, issued by a district court in California, bars Immigration and Customs Enforcement agents from arresting people because of four factors, alone or in combination: “appearing” Hispanic, speaking Spanish or accented English, working a particular type of job, and being present at a place where immigrants “are known to gather.” The Justice Department claimed that the district court “egregiously” and “needlessly upended immigration enforcement” by prohibiting such arrests and sought permission to resume them immediately.

Mark Joseph Stern discussed the case and its alarming implications with Cristian Farias on this week’s Slate Plus bonus episode of Amicus. Farias is a legal journalist and host of The Bully’s Pulpit, a podcast of the Knight First Amendment Institute at Columbia University. A preview of their conversation, below, has been edited and condensed for clarity.

Mark Joseph Stern: As I read this brief, the government is asking the Supreme Court for express permission to go ahead and engage in racial profiling. Is that right?

Cristian Farias: Yes. And specifically, what ICE is doing in Los Angeles and other immigrant-rich cities is going after workers. These people may not have authorization to be in the country. But immigrants are part of the social fabric of the community. Their kids are American citizens. They want to work. Migrants actually won a First Amendment right many years ago to seek work in public. For ICE to do away with the right that these workers have, these protections that they fought hard to gain, is truly appalling.

I’m wondering what the Supreme Court will do. This is not a nationwide injunction, which we’ve seen the administration complain about. This is a targeted injunction covering the central district of California. Yes, it’s huge, it covers many people. But that’s where the lawsuit was brought because that’s where the bulk of these ICE actions have been happening, and immigrants are just deeply, deeply connected to the community here. And if you go after them, you truly rip the whole community apart. That’s why these advocates went to court to try to stop what they see as an attack on daily life, on work. I really hope the Supreme Court doesn’t disturb that injunction, although based on what we’ve seen in the past few months, I’m not holding my breath.

We’ve been talking a lot on this show about the Trump administration lying to courts, and I think that has happened again here. The Justice Department put forth some pretty questionable numbers: It claims 1 in 10 people in central California are undocumented, then claims that well over 15 million undocumented people are living in the country right now. That figure comes from a group called the Center for Immigration Studies, a notorious nativist organization that’s designated as a hate group by the Southern Poverty Law Center. So those numbers are very suspect.

Beyond that, I think the government’s recitation of the law is suspect. You mentioned the rights of workers to seek jobs. I also want to flag they have a right not to be profiled. In 1975’s United States v. Brignoni-Ponce, the Supreme Court unanimously ruled that an officer could not stop a driver solely on the basis that he appears Mexican. That would seem to apply to a situation where ICE agents want to arrest individuals solely because they appear Hispanic or are speaking Spanish. Do you think that this precedent—even though it’s unanimous—is just gonna be another case that the Supreme Court tosses out the window?

It’s possible. And even if they don’t toss it out the window, they’re definitely going to find a way to distinguish it. There are a ton of things they could do to say: Well, immigration enforcement is different. They can say the border is everywhere, no matter where you’re standing, Border Patrol and ICE have jurisdiction over broad swaths of cities that are very close to the coasts, or are within a certain radius of the border. And because of that, the court has ways to kind of distinguish those past precedents that are more in the state and local policing realm. The solicitor general says it’s different because ICE is enforcing federal law.

But the reality is that now, on the Supreme Court’s docket, is Stephen Miller’s order to snatch 3,000 people a day. That’s a direct order from Stephen Miller that has been reported on. And the fact is that ICE is having a hard time meeting those numbers. In order to meet quotas, you need to target people who are not here causing trouble, but who are just working and living their daily lives. And in order to pad those numbers, you just need to flood the zone. That’s what’s happening in L.A. and in other cities.

I don’t think it would be an exaggeration to say that if the Supreme Court does greenlight this kind of arrest based on racial profiling, that’s leading us back to Korematsu, isn’t it? Korematsu is the notorious decision upholding Japanese internment, allowing discrimination on the basis of race and national origin. The Supreme Court recently claimed that it had tossed that precedent into the dustbin of history. But it seems like the Trump administration is reaching into that bin, taking out Korematsu, dusting it off, and presenting it right back to the Supreme Court here.

It certainly feels that way. One thing that I believe is very appealing to them is that they can get away with ruling for Trump on the shadow docket without saying why. They can hide the ball and pretend they aren’t blessing racism. The dissenters might bring that out in their own writings, but the majority doesn’t have to. The majority can give the victor the spoils without explaining itself. That’s a very, very appealing mechanism for blessing all this chaos, harm, and pain we’re seeing.

Just this week, we saw ICE agents coming out of a rented box truck outside of a Home Depot to ambush people who are seeking work in public. The public is growing weary of these tactics; a lot of people who voted for Trump thought he’d deport the people who are truly here to cause trouble. But as we’re seeing here, Miller doesn’t care about only those people. He cares about anyone who looks like me and is doing work outside without legal authorization. I mean, I’m a citizen, but the fact I look a certain way makes me a target. And that’s not something that should be allowed under the Constitution.

Sign up for Slate's evening newsletter.