Donald Trump had a good day at the Supreme Court. Humphrey's Executor ... not so much.
Trump won in two cases, both on procedural grounds, and in truth, both wins are temporary. However, the direction of the Supreme Court on executive power under Article II seems clearer than ever, especially since Chief Justice John Roberts authored the orders without comment, although Justice Brett Kavanaugh did offer a concurrence.
The order that will get the most attention allows ICE to continue its immigration enforcement activities in Los Angeles. A lower court had blocked ICE, claiming that the agency used "racial profiling" to find illegal aliens, a claim that the Supreme Court clearly rejected -- for now, anyway:
The Supreme Court has lifted restrictions that barred the Trump administration from carrying out immigration-related raids in the Los Angeles area based on broad criteria such as speaking Spanish or gathering at locations day laborers often congregate.
The justices, who apparently divided 6-3 along ideological lines, put on hold a federal district judge’s order that reined in what critics called “roving” raids by Immigration and Customs Enforcement. That judge had found the tactics were likely unconstitutional because agents were detaining people without probable cause at car washes, bus stops and Home Depot parking lots based on stereotypes.
According to the New York Times, the case involved a complaint from an American-born citizen caught up in the roving patrols. The claim sounds as though it came directly out of Cheech Marin's song and movie Born In East LA:
One plaintiff, Jason Brian Gavidia, a U.S. citizen born in East Los Angeles, was stopped by a masked agent while he was working on his car outside a tow yard. The encounter was captured on video.
The agent asked whether Mr. Gavidia was American, and he said he was.
The agent then asked what hospital Mr. Gavidia had been born in, and he said he did not know. According to the lawsuit, the agent and a colleague proceeded to slam Mr. Gavidia against a metal gate, twist his arm and seize his phone. ...
In response to what she called a “mountain of evidence” of agents “indiscriminately rounding up numerous individuals without reasonable suspicion,” Judge Maame E. Frimpong, of the U.S. District Court for the Central District of California, ordered agents not to rely on several factors, alone or in combination, in deciding whom to stop and question in her judicial district, which includes Los Angeles and surrounding areas.
If this story is accurate, it sounds as though Gavidia has a good basis for a lawsuit against ICE for violation of civil rights. However, as Kavanaugh points out in his concurrence, one bad arrest/detention does not invalidate law enforcement activities in the future. Citing an earlier precedent in Lyons, Kavanaugh rejects the standing for plaintiffs seeking the restraining order:
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.
But even if the plaintiff has standing, Kavanaugh wrote, there is no Fourth Amendment issue. Law enforcement cannot use language or ethnicity alone for probable cause, he acknowledges, but immigration enforcement officers operated on a variety of factors in detaining potential suspects:
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. BrignoniPonce, 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.
That is why this order sends a strong signal to lower courts. The Supreme Court has its ducks in a row on both merit and standing, and are signaling that the Trump administration does as well. The enforcement of law depends on policy and politics, but the law is the law, and ICE and the White House are operating well within it.
Roberts also lifted an order by a lower court to reinstate Rebecca Slaughter, whom Trumo fired from the Federal Trade Commission, along with five other members. The order allows the FTC to operate without Slaughter in the short term while the high court takes a closer look at the case:
Chief Justice John Roberts on Monday allowed President Donald Trump to remove a member of the Federal Trade Commission for now, a temporary win for the White House as it extends control over independent agencies throughout the federal government.
The short-term order, known as an administrative stay, is designed to give the justices more time to review Trump’s emergency request to fire Rebecca Kelly Slaughter, who has served on the FTC since 2018. Roberts handles emergency appeals rising from the federal court of appeals in Washington.
By itself, Roberts’ order does not signal whether Trump will ultimately win his appeal in Slaughter’s case. Roberts ordered Slaughter’s legal team to respond to Trump’s emergency appeal by September 15.
Roberts’ order, which offered no explanation, will allow Trump to keep Slaughter out of work until the high court resolves the emergency case.
"By itself"? Technically, it doesn't spell out the final decision. However, the Supreme Court usually takes care not to intervene like this unless the plaintiff (Trump) has a good chance of prevailing and the balance of equities goes in his favor. Given the other cases in which the court has all but reversed Humphrey's Executor as an affront to Article II power, it seems pretty clear how this will end up when the court hears the emergency appeal next week.
In all, it's been a good day for Trump and for constitutional order. He'd better enjoy these wins while he can, as his case on tariffs may founder on the same issues of constitutional order. Stay tuned.
