CONSTITUTIONAL INTERPRETATIONS

To accomplish the mass deportation of undocumented immigrants that President Trump wants, federal immigration agents raid sites where they suspect a large number of “illegal” immigrants can be found. At those sites, the agents temporarily stop the individuals found there to ask them if they are citizens. If any individuals fail to assert their citizenship right away, the agents prolong the stop to ask those individuals if they are present in the United States legally. If the individuals fail to satisfy the agents of their legal presence, the agents make a full scale arrest, taking the suspected “illegal” immigrants into custody. There, the arrested individuals are formally notified of a civil “removal” proceeding against them, pending the outcome of which they must remain in custody.[1] The Fourth Amendment question here is whether these particular tactics for forcibly removing undocumented immigrants from the United States, are “unreasonable” or not.[2] If they are, they violate the United States Constitution and should be stopped.

Superficially, these tactics have been approved and authorized by Congress, raising a presumption of their “reasonableness.” See 8 U.S.C. §1357(a)(1-2). However, as Justice Kavanaugh has observed,[3] the tactics include the practice of the agents to choose sites for immigration raids based, in part, upon the site occupants’ “apparent ethnicity” as a sign of “illegal” immigration.[4]

At least since the end of the Civil War, the federal government has ostensibly frowned on the use of a person’s race as a basis for taking adverse action against that person.[5] That concern became acute during World War II, when the federal government began sending people of Japanese descent to internment camps, on the ground of their potential threat to national security. See Korematsu v. United States, 323 U.S. 214 (1944), approving that internment. In Trump v. Hawaii, 585 U.S. 667 (2018), the Supreme Court unanimously condemned the Korematsu Case as “gravely wrong the day it was decided . . . [with] no place in law under the Constitution.” As the case of Trump v. Hawaii put today’s issue, the use of a person’s “apparent ethnicity” as a ground for taking adverse action against that person should be regarded as legally “unreasonable.” This form of racial profiling  under the federal “removal” statute is therefore “repugnant” to the Constitution  and the statute, as so applied, should be declared “void.” Marbury v. Madison, 5 U.S. 137, 180 (1803).

/s/ Dan D. Rhea

[1] These facts are drawn from the concurring Opinion of Supreme Court Justice Brett Kavanaugh in the Court’s Oder of September 8, 2025, granting the federal government’s Motion to Stay a lower court’s injunction against this kind of “seizure,” see Noem v. Vasquez Perdomo, U.S. Sup. Ct. No. 25A169, p. 2.

[2] The Fourth Amendment reads “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ….”

[3] See footnote 1, supra.

[4] See Kavanaugh Concurring Opinion, Noem v. Vasquez Perdomo, supra, p. 5.

[5] See the Civil War Amendments, at U.S. Constitution, Amendments XIII, XIV, and XV.