Whose Common Sense?

On September 8, 2025, in the case of Noem v. Vazquez Perdomo, the Supreme Court signaled its support for ICE’s continued use of racial profiling in immigration policing. By staying a lower court’s restraining order, the Court allowed agents once again to stop and arrest people based on how they look, the language they speak, where they live, and the kind of work they do. The closest the Court came to providing reasons for its intervention came in the form of a non-precedential concurrence authored by Justice Kavanaugh. In it, “common sense” is doing the heavy lifting, just as it has in the Court’s immigration policing jurisprudence for decades, at the expense of facts, evidence, and individual rights.

Encounters with ICE

A few weeks ago, I got an anxious call from a close family friend. He told me what happened to his mother, a US citizen who works in public-facing business in a city on the US-Mexico border. While going about her ordinary work, she was surprised when an ICE agent entered the shop and asked her to prove that she was lawfully present. Fortunately, she carries her passport with her, and offered to go to the back of the shop and get it for him. The armed ICE agent said he would accompany her to the back of the shop, because she “might have a gun” back there. They went to the back, he inspected her documents, and after a brief time, he left. The interaction lasted several minutes, but my friend said his mom was shaken to have been accosted in her place of work by an armed immigration agent asking her to prove her citizenship. She did not feel like she could have refused his request, and felt her rights had been violated. Notwithstanding her justified and genuine feelings, the government would likely prevail on the argument that the interaction was lawful because it was “consensual.” But even if a court found that her rights had been violated, and that she had been stopped without justification, there aren’t any meaningful legal remedies for the indignity she suffered. For these reasons, it will be very difficult to prevent this from happening to her again.

Encounters like this are unfolding in many cities across the US right now. ICE agents size people up and determine their immigration status based on their appearance, the language they speak, their location, and the nature of their work. Federal District Court Judge Maame Ewusi-Mensah Frimpong made explicit factual findings acknowledging this reality when residents of Southern California challenged these ICE tactics in her courtroom. She issued a temporary restraining order preventing ICE from conducting investigative stops and arrests on these bases in the Central District of California, a jurisdiction that includes Los Angeles and surrounding counties. The Ninth Circuit Court of Appeals determined that Judge Fripong’s restraining order was lawful and should stay in place pending further litigation.

My friend’s mom was stopped far away from Southern California, in a place where that injunction had no effect, so she was not protected by it. Today, no one is. Because on September 8, 2025, the Supreme Court stayed Judge Fripong’s order, allowing ICE to resume the same tactics in Southern California that it has been using elsewhere in the country all along.

“Common sense” doing the work

The Supreme Court’s decision to stay the injunction was made on the shadow docket. We do not know whether the decision was supported by five justices or six, though we know that Justices Kagan and Jackson joined Justice Sotomayor in dissent. The majority provided no reasoning at all. The closest the Court came to providing reasons for its intervention came in the form of a non-precedential concurrence authored by Justice Kavanaugh. His legal reasoning focuses on two points.

First, he determined that the injunction was improper under the Supreme Court’s precedent in City of Los Angeles v. Lyons. In the 1983 Lyons decision, the Supreme Court struck down a lower court’s injunction against the Los Angeles Police Department’s (LAPD’s) use of chokeholds. The Court reasoned that there was no “real and immediate” threat that Mr. Lyons, who had already been unlawfully choked at the hands of the LAPD, would be subjected to a chokehold again. Lyons was a troubling case when it was decided, and many scholars have argued that it was wrongly decided. But even if one accepts (as we must) that Lyons is the law, it is not clear that the case should have been read to bar the relief that Judge Fripong ordered in Central District’s immigration enforcement case. Unlike the chokehold in Lyons, the race-based stops in Southern California are an ongoing and official ICE agency practice, not a one-off violation of agency practice. (Justice Sotomayor’s dissent stresses this distinction.). It may be that the majority of justices on the Supreme Court disagreed with the District Court’s extensively documented factual findings in this regard. But who can say?

Second, Justice Kavanaugh reasons that race-based stops are an essential and lawful element of immigration policing. He notes that such stops are brief and nonintrusive, and therefore can be supported on the basis of “reasonable suspicion” – a relatively low standard of proof.  It is worth quoting his opinion at length here:

To stop an individual for brief questioning about immigration status, the Government must have reasonable suspicion that the individual is illegally present in the United States. See Brignoni-Ponce, 422 U. S., at 880–882;        Arvizu, 534 U. S., at 273; United States v. Sokolow, 490 U. S. 1, 7 (1989). Reasonable suspicion is a lesser requirement than probable cause and “considerably short” of the preponderance of the evidence standard. Arvizu, 534 U. S., at 274. Whether an officer has reasonable suspicion depends on the totality of the circumstances. Brignoni-Ponce, 422 U. S., at 885, n. 10; Arvizu, 534 U. S., at 273. Here, those circumstances include: that there is an extremely high number and percentage of illegal immigrants in the Los Angeles area; that those individuals tend to gather in certain locations to seek daily work; that those individuals often work in certain kinds of jobs, such as day labor, landscaping, agriculture, and construction, that do not require paperwork and are therefore especially attractive to illegal immigrants; and that many of those illegally in the Los Angeles area come from Mexico or Central America and do not speak much English. Cf. Brignoni-Ponce, 422 U. S., at 884–885 (listing “[a]ny number of factors” that contribute to reasonable suspicion of illegal presence). To be clear, apparent ethnicity alone cannot furnish reasonable suspicion; under this Court’s case law regarding immigration stops, however, it can be a “relevant factor” when considered along with other salient factors. Id., at 887.

Under this Court’s precedents, not to mention common sense, those circumstances taken together can constitute at least reasonable suspicion of illegal presence in the United States.

Kavanaugh’s invocation of “common sense” is important here because “common sense” has been doing a lot of work in the Court’s immigration policing jurisprudence for decades, at the expense of facts and evidence. It is doing a lot of work in Kavanaugh’s opinion here. Note the number of factual assertions in this paragraph supported by nothing more than “common sense.” I am not omitting his citations to evidence; there are no such citations.

Empty vessels

The citation offered after Kavanaugh’s string of factual assertions about unauthorized migrants is to the 1975 Supreme Court case of United States v. Brignoni-Ponce. That case (fittingly?) involved a Border Patrol stop of a car driven by a Puerto Rican US citizen – a stop justified solely on the basis of the “Mexican appearance” of those in the car. In that case, the Court reasoned that race – here in the form of what the Court calls “apparent Mexican ancestry” – could support a finding of reasonable suspicion for an immigration-based stop, provided it was not the sole factor, and was used in conjunction with other factors.

There are many problems with the Brignoni-Ponce case, but two are worth noting here. First, given the facts of the case, it should have been evident even in 1975 that “apparent Mexican ancestry” was nothing more than an empty vessel to be filled with racial stereotypes about who belongs in the country and who is “illegal.” Mexico is a multiracial, multiethnic country, which means that the descriptor “Mexican appearance” is about as helpful as one “of human ancestry.” But even if you could figure out what someone of “Mexican ancestry” looks like without resorting to self-reenforcing stereotypes, people of actual Mexican ancestry make up over 80% of the population in the city where my friend’s mom works. Similarly, nearly half of the population of Los Angeles identifies as “Hispanic.” This “factor” doesn’t tell anyone anything about immigration status in the vast majority of cases in most American cities, especially those located on land that actually used to be Mexico.

The “common sense” of treating “apparent Mexican ancestry” as a stand-in for unauthorized presence thus turns out not to be commonsensical at all. Indeed, given these realities, about three decades after Brignoni-Ponce was decided, the Ninth Circuit, sitting en banc, concluded that the use of “Hispanic appearance” could no longer serve as a legitimate factor justifying an investigative stop in Southern California, where “Hispanics” make up a substantial percentage of the overall population. At least, that was the case for almost twenty years, until the Supreme Court intervened in a way that effectively endorses the continued use of race in immigration policing, in purported reliance on Brignoni-Ponce.

Further complicating the picture, the racial and ethnic composition of the unauthorized population is not what it was when Brignoni-Ponce was decided. About one third of the unauthorized population in the United States is now comprised of immigrants from Asian, European, and African countries. Given that reality, a choice to focus on one subset of the unauthorized population for aggressive enforcement efforts looks less like common sense, and more like racism.

A second problem with the Court’s renewed reliance on Brignoni-Ponce is that many of the factors other than race that it identifies as possible bases of reasonable suspicion – things like “the mode of dress and haircut” and “proximity to the border” – do not actually require anything beyond racial profiling. These justifications can, and often do, collapse down to racial appearance. (Justice Sotomayor’s footnote six notes the persistence of this problem.) Functionally, Brignoni-Ponce has always greenlighted enforcement practices that rely on little more than racial profiling. But rather than letting this unfortunate legal relic die, the Court has just reinvigorated it.

Double standards

Justice Kavanaugh’s opinion does get one critical fact right: it really is not possible to police immigration via sweeps on the streets without resorting to impermissible factors, because no one (and I include trained agents in this statement) can tell by looking at a stranger – any stranger – whether that person is a citizen, a lawful permanent resident, an undocumented immigrant, an immigrant present on a nonimmigrant visa, a noncitizen with Temporary Protected Status, a noncitizen with some form of humanitarian parole, or anything else. It may be possible, though not nearly as easy as the Supreme Court often suggests, to develop reasonable suspicion regarding a person’s intent to violate a criminal or immigration law based on their location, along with their “movements” and their other actions. This assumption is the basis of the Court’s reasonable suspicion cases outside of the immigration context, and these cases are troubling enough. But only in immigration policing cases does the Court explicitly reason that someone’s (racialized) appearance alone gets a law enforcement officer almost 100% of the way toward “reasonable suspicion” that a person is violating immigration law. The Court’s endorsement of racially discriminatory policing is very difficult to reconcile with its hard line against any reliance on race in other contexts. And its fatally flawed assumption about the strong link between race and immigration violations is why my friend’s mom feels that she needs to carry her passport with her everywhere she goes, while many people the US who are reading this column do not feel that way at all.

The choice to be made

Does that mean, as Kavanaugh commonsensically concludes, that the enforcement of immigration law requires racial profiling? No. The federal government has numerous ways to investigate immigration status, serve warrants based on probable cause of immigration violations, and remove people under the harsh provisions of the nation’s immigration law. Employers are required to document the work authorization status of their workers, and the federal government can audit those records. The Department of Homeland Security (DHS) receives the fingerprints of everyone (including every immigrant) who is arrested, making it easy for the government to match arrest records with immigration records and to prioritize the removal of immigrants who are out of status or in violation of the terms of their visas. DHS also has access to data that reveal which immigrants on student visas fail to comply with the terms of those visas and which immigrants present on work visas are no longer employed. Police officers at the state and federal level can inquire about immigration status during otherwise lawful stops. To be clear, scholars have documented serious concerns raised by some of these other law enforcement practices, which are not above criticism (and I will continue to criticize them). But these are just some of the means that the government has to enforce immigration law – means that are not facially discriminatory, and that are less frightening to the general public than immigration street sweeps. (One begins to suspect that the government favors street sweeps over diligent immigration investigations because sweeps make for more riveting television). It is unfortunate that, at a time when federal immigration enforcement agencies are receiving a massive expansion to their budgets, they are simultaneously receiving the message that they should unleash masked agents into the streets in the most chaotic and discriminatory enforcement strategy they possess.

Contrary to Kavanaugh’s suggestion, the choice that has to be made is not between racial profiling or no immigration enforcement at all. The choice is between discriminatory forms of immigration enforcement that terrorize broad swaths of the population, and nondiscriminatory immigration enforcement. At least for now, we’ll continue living with the former.