Earlier this year, The MV Times reported that the Island’s Brazilian community “represents an estimated 20 percent of the year-round population, or about 4,000 people.” No one has any idea how many of these folks are undocumented, but they are all in danger of arrest and deportation, every one of them.
The Supreme Court, on Sept. 8, said so in a case that arose on its emergency (or shadow) docket. This was an appeal by the Trump administration to allow agents from Immigration and Customs Enforcement (ICE) to arrest anyone based on their physical characteristics or where they work.
We can count on additional ICE raids on Martha’s Vineyard, as we witnessed last June. The court said in its unsigned, unexplained, single-paragraph ruling, that people may be detained and even deported if they speak Spanish, speak English with a Spanish accent, look Latino, or work in a place where many Latinos congregate (Noem v. Vasquez Perdomo). A federal district court and a federal circuit court of appeals earlier prohibited “racial or ethnic profiling.” For now, ICE agents are free to remove people based on vague reasons.
While the plaintiffs’ location is Los Angeles, the ruling affects everyone who fits the description noted above. It is discriminatory and appalling. It is also illegal and unconstitutional.
The 14th Amendment does not mention racial ethnic profiling, but one of its provisions prohibits law enforcement from engaging in stopping and arresting people simply because of what they look like or where they are standing. The provision states that the government may not “deprive any person of the equal protection of the laws.”
Two years ago, the Supreme Court prohibited public and private colleges and universities from using race or ethnicity to determine whether an applicant should be admitted to public or private colleges or universities. Writing for a six-to-three majority, Chief Justice John Roberts stated that “the guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color.”
For the court, this includes nationality and ethnic groups as well as racial ones. And it ought to include the detainment, arrest, and deportation of any person living in the U.S.
There was only one concurrence, that by Justice Brett Kavanaugh, that no other justice joined. Law students may do well to study it as an exercise in illogical reasoning and confusion.
First, he asserts without evidence that 15 million undocumented people live in the U.S. No one knows what the numbers are. Estimates may reach 15 million, or there may be more or there may be less. Who knows for certain? Nobody.
Second, Kavanaugh asserts that people may be stopped, arrested, deported if they fall into any of the following factors: they are “at particular locations such as bus stops, car washes, day laborer pickup sites, agricultural sites, and the like”; they engage in one of these types of work; they speak “Spanish or speak English with an accent”; and their “apparent race or ethnicity.”
These are all absurd and unconstitutional reasons for a law enforcement officer to stop someone. The law minimally requires a stop and arrest only when and if there is something called “reasonable suspicion” that a crime has occurred or may be on the cusp of occurring. Not someone standing at a bus stop, at a workplace, speaking a particular language, or some other immaterial description. This has been the law since the Supreme Court case of Terry v. Ohio back in 1968.
The Fourth Amendment, as Justice Kavanaugh knows, protects everyone in the U.S., citizen and noncitizen alike. Before the government can arrest someone, there must be “probable cause.” As the amendment reads in full, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
None of this has taken place in Los Angeles. For Justice Kavanaugh, and apparently five other justices, it does not matter. But it should matter to us. As Justice Sonia Sotomayor put it in her heated dissent: due process “after today … may no longer be true for those who happen to look a certain way, speak a certain way, and appear to work a certain type of legitimate job that pays very little. Because this is unconscionably irreconcilable with our Nation’s constitutional guarantees, I dissent.”
We all should and must dissent. Our Brazilian neighbors are deeply at risk. In fact, anyone may be a suspect, including American citizens, if they look slightly Hispanic, speak with an accent, or work in the fields Kavanaugh laid out. Our republic is moving into darkening times.
Jack Fruchtman, who lives in Aquinnah, taught constitutional law and politics for more than 40 years.
