The U.S. Supreme Court's recent ruling in Noem v. Perdomo allows federal immigration agents to consider several factors, including race or ethnicity, language use, location and type of employment, under the suspicion that individuals might be undocumented immigrants.
Richard Primus, the Theodore J. St. Antoine Collegiate Professor of Law at the University of Michigan, discusses his analysis of this landmark decision and its potential implications for civil liberties and equal protection under the law.
How can using race in immigration stops be legal?
The law has always permitted race to be a factor in whom law enforcement officers choose to stop. A typical suspect description includes the suspect's race. If a witness of a gas station robbery tells the police that the robber was a six-foot-tall elderly white man, the suspect's race will be one of the criteria that police use to decide whom to stop: they will not, in this case, stop Black or Asian men.
What's remarkable and deeply troubling about Noem v. Perdomo is that the court is permitting race to be used as a factor for law enforcement stops even when the authorities have little reason other than race to think that the particular individual they are stopping is a lawbreaker. If law enforcement authorities stopped everyone in Los Angeles County whom this decision permitted them to stop, they'd stop enormous numbers of people, most of whom have done nothing wrong.
What does this mean for the future of our justice system?
If the decision stands, it means that at least in certain parts of the country, people who look Latino, or who speak Spanish in public, or who speak English with Latin American accents in public, and who do so in any of the many locations that the Supreme Court identified as places where unlawful immigrants are often found-including bus stops and low-wage workplaces-will have a reasonable fear that they will be accosted by law enforcement officials and asked to show proof of citizenship or legal residence.
Based on experience, we have reason to think that the stops will often be impolite and that they will sometimes be violent. This is a terrible state of affairs for U.S. law. In my own view, the Supreme Court is deeply mistaken: the Constitution is better understood to prohibit the practice. And if the court is right that the Constitution permits this, the Constitution should be changed.
Could this create a second-class status for some Americans?
It all depends on what one means by second-class status. There's no such thing, officially, as second-class status, so different people understand the idea differently. The Supreme Court's decision creates a situation where some people are more likely than others to be subject to race-based suspicion from law enforcement. That could reasonably be described as making some people second-class Americans. But it's bad whether we describe it that way or not.
Did cases like Dred Scott or the Chinese exclusion cases diminish the United States' global standing? Will this decision have a similar effect?
Historically, I'm not at all sure that those Supreme Court decisions had long-term adverse effects on the global standing of the United States. The decisions are shameful, but that doesn't mean that they hurt the country's global standing.
But I do think that it will be a terrible thing for the global standing of the United States if the country comes to be known as a place where nonwhite people and people for whom English is not their native language are subject to arbitrary suspicion and detention.
