CONSTITUTIONAL INTERPRETATIONS

In conducting raids against “illegal” immigrants, the federal government has admitted that its policy is to authorize the arrest, without a warrant,  of “immigrants” reasonably suspected of being “illegal immigrants,” based upon 1) their “apparent ethnicity”, 2) the language they speak, 3)the accent they speak it with, and 4) their presence in a location commonly used by “illegal immigrants,” after only a “brief stop” by immigration officers and a “brief conversation” during that stop in which the suspect fails to convince the officer that he or she is not an “illegal immigrant.” See Noem v. Vasquez Perdamo, Slip Opinion of Justice Kavanaugh and Slip Opinion of Justices Sotomayor, Kagan and Jackson, both of September 8, 2025. These competing slip opinions discuss the Court’s injunction, also issued on September 8, against enforcement of a trial court’s temporary injunction against the “brief stop” policy, pending review of the trial court’s ruling by higher courts, including the Supreme Court itself. The non-binding slip opinions argue the question of whether the government’s “brief stop” policy violates, or doesn’t violate the Fourth Amendment to the United States Constitution.

The ‘‘brief stop” policy is ostensibly authorized by a federal statute, 8 U.S. Code §1357(a)(1), the language of which does seem to include authority to conduct brief, coercive, but non-custodial stops of suspected illegal “aliens” for the purpose of interrogating them about their legality, all without a warrant. If the statute does cover the “brief stop” policy, then the question for reviewing courts will be whether that statute itself violates the Fourth Amendment. It does not, at least not with the clarity required of Constitutional prohibitions of certain kinds of statutes. The Fourth Amendment reads as follows:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const., Amendment IV. The statute, if applicable, basically categorizes coercive police interrogations about immigration status that occur outside of actual police custody as a reasonable “seizure” of a “person,” not subject to either the Fourth Amendment or the common law tort of false imprisonment. At least both the statute and the Fourth Amendment can reasonably be read that way, resulting in the reconciliation of both the semantically ascertained intent, and the contextually ascertained purpose of those provisions.

The inclusion of “apparent ethnicity” in the government’s “brief stop” policy as evidence of a crime is indeed disturbing and repulsive. However, the Equal Protection Clause of the Fourteenth Amendment, which generally prohibits legal consideration of a person’s ethnicity, doesn’t apply to the federal government. See U.S. Const., Amendment XIV, §1. Effective reaction to the repulsiveness of the federal government’s “brief stop” policy can come peacefully only through the ballot box when seats in Congress are at stake, or else through a Constitutional amendment (also subject to ballot box review).

Dan D. Rhea