Tom Nichols

Posted on: September 9, 2025 at 18:12:06 CT

You there. Stop what you’re doing. Take off that tool belt and hard hat—let’s see some ID. Why? Because we don’t think you’re a citizen. Now show us your papers.

This kind of behavior by government officials is now legal in the United States.

Yesterday, the conservative majority on the Supreme Court allowed ICE officials to conduct roving patrols and use racial profiling to stop and detain people for no other reason than their skin color, the language they’re speaking, suspicions about their national origin—or, really, if immigration officials just feel like it.

But wait, you might object. The Fourth Amendment to the Constitution prohibits unreasonable search and seizure. Did the Court explain why that protection apparently no longer applies to you if you’re a day laborer or running a fruit stand? Good luck with that: This Court’s majority doesn’t explain itself to anyone. It merely lets stand or overturns the decisions of lower courts—lately, almost always in favor of expanding the power of, and corroding any checks on, President Donald Trump.

Noem v. Vasquez Perdomo is a case from Los Angeles about whether ICE can stop people because of a suspicion of their being in the United States illegally, based solely, as SCOTUSblog summarized it, on any combination of four factors: a person’s “‘apparent race or ethnicity,’ speaking in Spanish or accented English, being present at a location where undocumented immigrants ‘are known to gather’ (such as pickup spots for day laborers), and working at specific jobs, such as landscaping or construction.”

A California district-court judge had earlier enjoined ICE from making such stops, perhaps appalled by this example:

Plaintiff Jason Brian Gavidia is a U.S. citizen who was born and raised in East Los Angeles and identifies as Latino. On the afternoon of June 12, he stepped onto the sidewalk outside of a tow yard in Montebello, California, where he saw agents carrying handguns and military-style rifles. One agent ordered him to “Stop right there” while another “ran towards [him].” The agents repeatedly asked Gavidia whether he is American—and they repeatedly ignored his answer: “I am an American.” The agents asked Gavidia what hospital he was born in—and he explained that he did not know which hospital. “The agents forcefully pushed [Gavidia] up against the metal gated fence, put [his] hands behind [his] back, and twisted [his] arm.” An agent asked again, “What hospital were you born in?” Gavidia again explained that he did not know which hospital and said “East L.A.” He then told the agents he could show them his Real ID. The agents took Gavidia’s ID and his phone and kept his phone for 20 minutes. They never returned his ID.

In overturning the lower court’s decision, five of the Court’s six right-wing justices—there is no other reasonable way to describe them at this point—took advantage of their right to remain silent, but Justice Brett Kavanaugh gamely tried to speak up in a concurrence. If his goal was to be reassuring, he did not help matters: Such stops are usually “brief,” he explained. Again, I am not a scholar of the Constitution, but I had no idea that I could be deprived of my rights under the Fourth (or any other) Amendment as long as my getting roughed up takes only a few moments out of my busy day.

Kavanaugh also noted in his concurrence that illegal immigration “is especially pronounced in the Los Angeles area, among other locales in the United States.” Yes, America has an illegal-immigration problem in various “locales,” and therefore … what? ICE officials can use race-based criteria in an area with a lot of Spanish-speaking citizens? I live near Boston, which has always had quite a lot of undocumented immigrants from Ireland; should ICE send agents up and down Boylston Street looking for red hair and listening for brogues? Chicago has a fair number of Poles, some of whom are in the United States illegally. Will ICE start staking out delis in Jefferson Park and waiting to see who buys a kielbasa?

Of course they won’t, because none of this is really about immigration. It is about the administration’s attempt to inflame racial tensions and divide Americans, and to acclimate them to the militarization of their streets and the stripping away of their constitutional protections.

Although the case is still under appeal, the Court’s decision is distressing as a matter of civil rights, and its obvious support of racial criteria to seek out targets for deportation should offend anyone who genuinely cares about stopping illegal immigration more broadly. (I have always been a hawk on that issue.) What’s more, it also undermines the legitimate uses of profiling, a valuable law-enforcement tool when employed under the right circumstances: The FBI, to take a famous example, has long had an entire unit that does scientific, evidence-based profiling.

And I say that as someone who was profiled.

Just a few weeks after 9/11, I was traveling to Moscow to do some research, with a stop in London for a short vacation with my then-wife. I was 40, a large fellow of Mediterranean extraction with dark hair, a beard, and a scar across the right side of my face. (Nothing dramatic: a childhood injury.) I was pulled out of line in Boston and grilled by security, though that ended quickly, when I produced my Defense Department identification.

The real fun began when I got to Heathrow Airport and had to change planes for my flight to Moscow, which required going through security again. A British security officer took me aside and practically stripped me in front of a crowd: He told me to unbutton my shirt, unbuckle my belt, and unzip my pants. He then examined all of my clothing and shoes. I staggered toward the departure gate with unlaced sneakers, holding up my jeans and trying to cover myself. My wife looked me up and down and said: “All that and he didn’t even buy you dinner.”

But I didn’t object. I was in a certain place at a certain time, doing something that could reasonably seem to be a concern under the circumstances. I knew that I fit the general profile of a hijacker: a dark-haired, bearded male who was under 50 and coming from Boston, one of the U.S. airports used by the 9/11 attackers. During the next few years, I would be pulled out of line for “random” checks, a lot.

What ICE is now allowed to do, however, is quite different. Imagine that instead of profiling and questioning people in airports, federal officers were allowed to roam the streets after 9/11, grab people while they were buying groceries or filling up their car, detain them on suspicion of looking like a terrorist, and then make them prove they were not plotting to kill Americans.

When I got to Moscow during those tense weeks after 9/11, I saw what this kind of law enforcement might look like. I was walking near the Old Arbat, a high-traffic tourist area, with a Russian friend. At the time, Russians were showing great sympathy for Americans and great anxiety about their own security. Just a few yards from us, uniformed cops stopped two young men, both with dark complexions and beards. “Documents,” they said curtly. I looked at my Russian friend. “Probably from Armenia or Georgia,” he said, “but could be Chechens. Have to check.”

I understood what the Russians were doing, but I didn’t like it. I was glad to return to America, where I felt protected by U.S. laws and the Constitution. Even then, though, I worried about how the response to 9/11 would erode our civil rights: The Patriot Act, the Department of Homeland Security, and many other measures are real concerns for any civil libertarian. But during the years of the War on Terror, I failed to imagine how a racist war on dark hair and Spanish accents could one day do its own harm to the protections of the Constitution—and that the Supreme Court would bless such an un-American scheme.

Edited by Ace at 18:12:44 on 09/09/25