The Volokh Conspiracy
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Supreme Court Lifts Injunction in Los Angeles Immigration Enforcement Case
Allowing the Administration's program to continue, although not creating any new Fourth Amendment law.
The Supreme Court entered an order today staying an order by a Los Angeles district court that had imposed a broad injunction in how the Trump Administration can enforce the immigration laws. The Supreme Court's order itself has no reasoning, but Justice Kavanaugh wrote a concurrence in the judgment explaining his vote in support of the Court's order and Justice Sotomayor (joined by Justice Kagan and Justice Jackson) wrote a dissent explaining their votes against the Court's order.
Given that the underlying merits involve my area, the Fourth Amendment, I thought I would offer some tentative thoughts.
By way of context, the usual practice is that courts rarely enter injunctions in Fourth Amendment cases. Fourth Amendment law is just too fact-specific. What the police can and can't do is so dependent on the facts that it's hard for courts to carve out ahead of time a class of things the Fourth Amendment will not allow. This creates a problem for courts wanting to impose broad injunctive relief to prevent Fourth Amendment violations. It forces courts to either say something generic like "don't violate the Fourth Amendment" —something the Fourth Amendment already covers—or to try to come up with prophylactic rules to protect the underlying Fourth Amendment values even if it means enjoining some constitutional acts to prevent other unconstitutional ones.
The Supreme Court has in the past interpreted limits on Article III to basically block these options. The key case is City of Los Angeles v. Lyons (1983). To get an injunction, a plaintiff has to show that the specific unconstitutional practice to be enjoined has happened to him before and will likely happen to him again. When that happens, the injunction will be specific and not prophylactic; it will specify a clearly unconstitutional practice. But that's a high bar, as it requires a situation in which a plaintiff who had his Fourth Amendment rights violated in a specific way before to have good reason to think his rights will be violated in that same specific way in the future. It means that injunctive relief in Fourth Amendment cases is uncommon. For more, see my short article The Limits of Fourth Amendment Injunctions (2009).
Now on to this case. The trial court imposed a broad injunction about what kinds of immigration stops are permitted. The key language was this:
a. As required by the Fourth Amendment of the United States Constitution, Defendants shall be enjoined from conducting detentive stops in this District unless the agent or officer has reasonable suspicion that the person to be stopped is within the United States in violation of U.S. immigration law.
b. In connection with paragraph (1), Defendants may not rely solely on the factors below, alone or in combination, to form reasonable suspicion for a detentive stop, except as permitted by law:
i. Apparent race or ethnicity;
ii. Speaking Spanish or speaking English with an accent;
iii. Presence at a particular location (e.g. bus stop, car wash, tow yard, day laborer pick up site, agricultural site, etc.); or
iv. The type of work one does.
The first part of this, (a), is just more or less summarizing Fourth Amendment law. It's (b) that is the more important part. Exactly what this language means isn't entirely clear, but it has a prophylactic quality. As I read it, at least, it seems to enjoin some constitutional action to prevent other unconstitutional action that is otherwise hard to stop. Put another way, the injunction approaches the Trump Administration's enforcement program at a programmatic level. It seeks to reform it at a programmatic level. That was justified under Lyons, the district court's reasoning seemed to go, because the plaintiffs were groups instead of individuals. In effect, the unknown but presumably large membership of the plaintiff groups created a way around the requirement that the particular plaintiff show a specific practice had happened before that would happen to him again.
When the district court's order came down, I was dubious about the legal basis of it. It seemed too easy a way around the limits of Fourth Amendment injunctions, allowing just the kind of programmatic reform efforts by injunctions that Lyons had stopped. Given all of this, I wasn't surprised that the Supreme Court stayed the order today.
Because the Supreme Court's order doesn't have any reasoning, it doesn't tell us why a majority of the Court ruled as it did. No new law is created. But we do have some dueling opinions which might be of interest. Here's an overview and some thoughts, focusing on the Fourth Amendment-related issues. (I'll skip over the non-Fourth Amendment parts, as they are not in my area of expertise. I'm sure others are writing on those.)
The only view we have in support of the order is Justice Kavanaugh's concurrence in the judgment. Justice Kavanaugh's opinion begins with what I would have thought was the traditional way to look at these things: You can't have this kind of broad injunction under Lyons.
Plaintiffs' standing theory largely tracks the theory rejected in Lyons. Like in Lyons, plaintiffs here allege that they were the subjects of unlawful law enforcement actions in the past—namely, being stopped for immigration questioning allegedly without reasonable suspicion of unlawful presence. And like in Lyons, plaintiffs seek a forward-looking injunction to enjoin law enforcement from stopping them without reasonable suspicion in the future. But like in Lyons, plaintiffs have no good basis to believe that law enforcement will unlawfully stop them in the future based on the prohibited factors—and certainly no good basis for believing that any stop of the plaintiffs is imminent. Therefore, they lack Article III standing: "Absent a sufficient likelihood" that the plaintiffs "will again be wronged in a similar way," they are "no more entitled to an injunction than any other citizen of Los Angeles; and a federal court may not entertain a claim by any or all citizens who no more than assert that certain practices of law enforcement officers are unconstitutional." Lyons, 461 U. S., at 111; see Clapper v. Amnesty Int'l USA, 568 U. S. 398 (2013); Application 16–22; Reply 4–9.2
That seems right. It's what I take to be the standard view of the law from Lyons.
Next, Justice Kavanaugh argues that even if the plaintiffs have standing to bring the case, the government has a fair prospect of success on the merits under the Fourth Amendment:
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. Importantly, reasonable suspicion means only that immigration officers may briefly stop the individual and inquire about immigration status. If the person is a U. S. citizen or otherwise lawfully in the United States, that individual will be free to go after the brief encounter. Only if the person is illegally in the United States may the stop lead to further immigration proceedings.
In short, given this Court's precedents, the Government has demonstrated a fair prospect of success both on standing and Fourth Amendment grounds. To conclude otherwise, this Court would likely have to overrule or significantly narrow two separate lines of precedents: the Lyons line of cases with respect to standing and the Brignoni-Ponce line of cases with respect to immigration stops based on reasonable suspicion. In this interim posture, plaintiffs have not made a persuasive argument for this Court to overrule or narrow either line of precedent, much less both of them.
I am not so sure what to make of this. It's trying to answer a vague hypothetical: If there were actual facts, would those actual facts reveal a Fourth Amendment violation? I think the answer is, well, it just depends on what the facts turn out to be.
This goes back to the prophylactic point I made above. If we imagine 100 stops that were prevented by the injunction, some number X would satisfy the Fourth Amendment and some number 100-X would not. We don't know what X is. Maybe it's 50, or maybe it's 90, or maybe it's 10. Or something else. Who knows. But there are no specific facts yet, which makes it impossible to apply the Fourth Amendment at this point.
I think Kavanaugh is on solid ground in thinking that X is not zero. That is, some of the stops would be constitutional. And for that matter, some of the interactions would not be deemed stops at all. But I'm not sure how that should translate in terms of the likelihood of success on the merits under the doctrine, though. Are we talking about the government's likelihood of success in one of the X cases where the Fourth Amendment was satisfied (very high), or the likelihood of success in one of the 100-X cases where the Fourth Amendment was violated (very low)? Maybe, in a case involving some unknown but large number of stops, you just take the whole imagined set and average them to get some predicted typical likelihood of success (high enough to satisfy that prong of the test, apparently)? The question is an odd one.
Justice Sotomayor's dissent offers a starkly different picture. Justice Sotomayor accepts the programmatic framing of the district court. That is, instead of looking at individual stops, she would look broadly at the program of stops that the Trump Administration enacted, called "Operation At Large." This is my characterization, not hers, but I think it's fair to say that this means you treat the facts as an imagined stop that the Administration is planning, in which (as she puts it) "all Latinos, U. S. citizens or not, who work low wage jobs are fair game to be seized at any time, taken away from work, and held until they provide proof of their legal status to the agents' satisfaction." With that as as the assumed set of facts, Justice Sotomayor says that those facts violate the Fourth Amendment:
The Fourth Amendment thus prohibits exactly what the Government is attempting to do here: seize individuals based solely on a set of facts that "describe[s] a very large category of presumably innocent" people. Reid, 448 U. S., at 441. As the District Court correctly held, the four factors—apparent race or ethnicity, speaking Spanish or English with an accent, location, and type of work—are "no more indicative of illegal presence in the country than of legal presence." App. 105a. The factors also in no way reflect the kind of individualized inquiry the Fourth Amendment demands. See, e.g., Terry, 392 U. S., at 21, n. 18 ("This demand for specificity . . . is the central teaching of this Court's Fourth Amendment jurisprudence"); United States v. Arvizu, 534 U. S. 266, 277 (2002) (relying on particularized facts about the vehicle and its passengers to justify stop based on reasonable suspicion). Allowing the seizure of any Latino speaking Spanish at a car wash in Los Angeles tramples the constitutional requirement that officers "must have a particularized and objective basis for suspecting the particular person stopped of criminal activity." United States v. Cortez, 449 U. S. 411, 417–418 (1981).
What about the problem of X? That is, that some X number of stops will be constitutional, and therefore presumably shouldn't be enjoined? Justice Sotomayor is dismissive of these concerns. Looking at the enforcement action as a program, she says the government has not put forward evidence that stops under the program are X cases. Thus, the X stops can be considered outside this case and are not relevant:
In any event, Operation At Large bears little resemblance to the Government's hypothetical. The Government has provided no evidence showing that its seizures were based on credible intelligence about a particular employer at a particular location. Indeed, the Government submitted no evidence about what facts its agents relied upon to conduct most of the seizures documented in the record. Rather, its declarations suggest that the Government generally targeted locations based on the "types of businesses" that, in the agents' generalized experiences, undocumented immigrants supposedly frequent. ECF Doc. 71–2, at 2 (emphasis added). That is plainly insufficient to give rise to a "particularized and objective basis for suspecting [a] particular person" under the Fourth Amendment. Cortez, 449 U. S., at 417–418.
What to make of this?
It seems to me that Justice Kavanaugh's opinion and Justice Sotomayor's dissent both have a hard time grappling with the X problem, and they both end up addressing it through framing. There are a lot of stops here, and some will comply with the Fourth Amendment (X) and others won't (100-X). Justice Kavanaugh says, in effect, there's enough X here so that we can take X as important we can't have a broad injunction. Justice Sotomayor says, in effect, let's focus on the 100-X cases so we can exclude the X cases from consideration and we need the broad injunction.
To my mind, all of this points to the underlying problem with Fourth Amendment injunctions that I wrote about in my 2009 article. It's hard to enter orders addressing a large but unknown set of scenarios in which some of the scenarios will be constitutional and some won't. You end up either just saying to not violate the Fourth Amendment, or you end up with the impossible task of trying to say in advance which specific facts will violate the Fourth Amendment, or you end up entering an overly broad prophylactic order enjoining a broad class of conduct to get to the cases that are unconstitutional within it. Given how fact-specific Fourth Amendment law is, it's just a hard way to rule on Fourth Amendment issues. So I tend to think reliance on Lyons is correct here, and that this should get in the way of saying much if anything about the Fourth Amendment merits.
Anyway, all of this means a lot more practically than legally. Legally, this doesn't change the law, as far as I can tell. It's an order with no reasoning, and Kavanaugh's opinion can be read in different ways but I wouldn't think of it as changing the law (at least on Fourth-Amendment-related issues). What matters here is the practical reality that the Trump Administration's enforcement program can continue. That's a very big deal on the ground.
Anyway, those are my tentative thoughts.
