The Volokh Conspiracy
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Noem v. Perdomo Is Grants Pass Redux
Can the government criminalize the state of being?
I continue to mull over Noem v. Perdomo. This case is different from recent emergency docket orders, which typically involve questions about administrative law and presidential power. Noem considers a more traditional constitutional dispute about the Fourth Amendment. In recent years, the Court has granted very few Fourth Amendment petitions. There is one case this year about the emergency-aid exception. So perhaps it is unusual for the Supreme Court to jump back into the CrimPro fray on the emergency docket.
But taking a step back, Noem may just represent where the current Court is on matters of criminal procedure. We have seen the Justices pivot to the right on a number of issues. But so far, the Fourth Amendment has not been affected. The last big Fourth Amendment case, Carpenter, was decided in 2018, while Justice Kennedy was still on the Court!
Where is the Roberts Court now on these issues? I think the most useful analogue to understand Noem may actually be City of Grants Pass v. Johnson. That case involved the Eighth Amendment, but the issues are related: can the state prohibit the "status" of being homeless? To be sure, the majority, per Justice Gorsuch, narrowly ruled that it was the conduct of camping that was bring criminalized. But I think Justice Sotomayor's dissent made the compelling point that people without homes have to sleep somewhere, and the state's law makes it a crime to simply be. As I put it, No homeless in the park.
The analogy between Grants Pass and Noem is apt. Under federal law, the mere status of being in the country illegally is an offense--not criminal, but the distinction doesn't matter here. There is no respite from this offense, which exists wherever an alien might be found--including while working. Justice Kavanaugh writes:
The interests of individuals who are illegally in the country in avoiding being stopped by law enforcement for questioning is ultimately an interest in evading the law. That is not an especially weighty legal interest.
I think what Justice Kavanaugh is saying here, is that the Fourth Amendment "reasonableness" inquiry must be different when the federal government is enforcing immigration laws. The fact that simply being illegal is itself an evasion of the law grants the government greater leeway in detaining suspected illegal aliens to check their immigration status. Two of the factors being considered are the person's apparent race or ethnicity, and whether they spoke Spanish with an accent. The government can consider these factors in the immigration context, even if they could not be considered in more routine law enforcement stops.
Mike Dorf wrote a post titled, "Working While Brown is the New Driving While Black." The title is provocative, to be sure, but I think it masks how the analysis here differs. A highway patrol officer should not consider a person's race, ethnicity, or language, when looking for traffic offenses, because none of those characteristics are themselves indicia of breaking traffic laws law. By contrast, factors like race, ethnicity, and language, combined with other factors, could be indicia of the person being in the United States in violation of immigration laws.
I do not think the Court is prepared to challenge longstanding precedents about racial profiling in traditional law enforcement contexts. To return to Dorf's post, a black person has every right to drive without being unlawfully detained based on their race. By contrast, according to Justice Kavanaugh, an illegal alien--or at least a person very likely to be an illegal alien--has no such right to not be detained. As Justice Kavanaugh explains, their interest in not being stopped is not "weighty."
Like in Grants Pass, Justice Sotomayor is in dissent pointing out the difficulties for people who lack the right to simply exist in their community--whether the homeless or illegal aliens. I think she effectively makes the policy argument, but the majority sees it differently.
Big picture, Justice Kavanaugh is signaling that the Court will allow the executive branch leeway to enforce federal immigration laws, even if past administrations failed to take these steps.
I highlighted this passage in my post yesterday:
To be sure, I recognize and fully appreciate that many (not all, but many) illegal immigrants come to the UnitedStates to escape poverty and the lack of freedom and opportunities in their home countries, and to make better lives for themselves and their families. And I understand that they may feel somewhat misled by the varying U. S.approaches to immigration enforcement over the last few decades. But the fact remains that, under the laws passedby Congress and the President, they are acting illegally by remaining in the United States—at least unless Congress and the President choose some other legislative approach tolegalize some or all of those individuals now illegally present in the country. And by illegally immigrating into and remaining in the country, they are not only violating the immigration laws, but also jumping in front of those noncitizens who follow the rules and wait in line to immigrate into the United States through the legal immigration process.
I think this passage, in a nutshell, summarizes how the Court will approach immigration cases. Justice Kavanaugh is at his best when he is explaining novel concepts that the Court hasn't yet gotten around to. Stay tuned till a case like this reaches the merits docket.
