Ian Millhiser details all the ICE atrocities we’re seeing all over the country, including the assaults on elected officials, and points out that it has largely been enabled by the partisan Supreme Court:
The Supreme Court — or, at least, its six Republicans — appears to be entirely on board with these tactics. In September, the Republican justices voted to block a lower court order that, among other things, forbade ICE from targeting suspected undocumented immigrants solely because of their race. That case is known as Noem v. Vasquez Perdomo.
The Republican justices rarely explain their decisions when they rule in Trump’s favor, but Justice Brett Kavanaugh did write a concurring opinion explaining why he voted the way he did. His assertion that someone targeted by ICE’s “apparent ethnicity” was “relevant” to law enforcement deciding whom to stop has received the most attention, as Kavanaugh seemed to blow off fears that federal law enforcement is targeting Latinos because of their race. But Kavanaugh also strongly implied that no one victimized by ICE may seek an injunction prohibiting ICE from engaging in illegal tactics in the future. (In the wake of this decision, many commentators are now referring to ICE’s tactics as “Kavanaugh stops.”)
So are there any legal avenues left to challenge abusive tactics by ICE, or by other law enforcement agencies controlled by Trump? The short answer is that a few narrow pathways still exist, but they are unlikely to provide a meaningful check on ICE’s behavior.
Broadly speaking, there are five ways that the law could constrain federal law enforcement:
- A federal court might issue an injunction against a law enforcement agency, barring it from continuing to engage in a particular illegal practice. Kavanaugh’s opinion in Vasquez Perdomo, however, suggests that this Supreme Court will not allow such an injunction to stand.
- A court might order an individual law enforcement officer to compensate the victim of that officer’s illegal action. The Republican justices, however, have largely cut off this avenue in two decisions handed down in the past five years.
- A victim of illegal behavior by a federal law enforcement officer might sue the United States and seek compensation. The Supreme Court’s unanimous decision in Millbrook v. United States (2013) suggests that this avenue remains open — although it is unlikely that either Trump or any individual officer will change their behavior because they fear that the US Treasury may have to pay out some money at some future date.
- A law enforcement officer, or perhaps a senior law enforcement official, might be criminally prosecuted. Such a prosecution would depend on whether an existing criminal law already prohibits the officer’s activity (or potentially, whether it prohibits an order to an officer given by a senior official). And it is unlikely that any such prosecutions will happen for as long as Trump controls the Justice Department.
- Finally, until recently, Trump himself could potentially have been prosecuted if he gave an order that violates federal criminal law. But the Republican justices gave Trump sweeping immunity from prosecution in Trump v. United States (2024).
Thin gruel. I have absolutely no confidence that they will do anything but enable Trump even more. I hope I’m wrong. But it’s quite clear that the 6 wingnuts are all infected to one degree or another by Fox News Brain Rot and I don’t think there’s much chance that they will have any compunction about giving these thugs all the room they need to brutalize immigrants and citizens alike.
Read the whole piece for the details. It’s profoundly depressing but I think we have to be realistic about this Court. Today, they took up the burning question of whether drug users should be allowed to have guns. They certainly have their fingers on the pulse of American society and its most pressing concerns. They aren’t coming to save us.