Doubtful Facts Support Racial Profiling Decision
Supreme Court Justice Brett Kavanaugh repeats government’s dubious claims about migrants
President Trump and his top immigration advisers are big on big exaggerations. Kilmar Ábrego García is an “animal.” A Venezuelan gang that few people had heard about two years ago is invading the United States. And in Los Angeles, the country’s second largest city, one out of every ten people isn’t supposed to be living in the United States. Siding with the Trump administration in a lawsuit over immigration law enforcement tactics that agents have used in Los Angeles, Justice Brett Kavanaugh agrees. But in greenlighting the administration’s request, Kavanaugh risks staining the Supreme Court with unsupported claims that reek of a rush to judgement.
Last week, the Supreme Court allowed immigration agents to stop and question people on the basis of their ethnicity, spoken language, location, and job. Kavanaugh voted alongside the court’s six rightwing justices to block an order from a lower court judge that had stopped immigration agents from relying on these reasons alone. In a one-paragraph order, the majority of justices did not explain their reasons for siding with the Trump administration in Noem v. Vasquez Perdomo.
Writing only for himself, Kavanaugh did. Across ten pages, he explains that, in his view, the Fourth Amendment permits immigration agents to consider ethnicity, language, and the other factors to decide who might be violating immigration law. It is “common sense” for immigration agents to be suspicious of people who look like they are originally from México or Central America; appear to agents not to speak “much English”; work in “certain kinds of jobs, such as day labor, landscaping, agriculture, and construction”; and gather in areas that unauthorized migrants frequent in large numbers.
To support his interpretation of the U.S. Constitution, Kavanaugh claims that violations of immigration law are “especially pronounced” in the Los Angeles region. “The Government estimates that at least 15 million people are in the United States illegally,” he writes. If true, that would be about 4.5 percent of the nation’s 331 million people. The L.A. region, he added, is home to about 2 million of those people, which – again, if true – would give it 13 percent of the country’s unauthorized migrant population. “About 10 percent of the people in the Los Angeles region are illegally in the United States,” Kavanaugh added.
Importantly, Kavanaugh did not cite any source for his claims about the number of unauthorized migrants nationally or in Los Angeles. He may not have told us where he got his information, but he did tell us why it matters. “Not surprisingly given those extraordinary numbers, U.S. immigration officers have prioritized immigration enforcement in the Los Angeles region,” he wrote. It’s hard to miss the implication: given the number of unauthorized migrants in the L.A. area, it’s only rational for immigration agents to use every tool at their disposal to find, detain, and deport them.
Kavanaugh’s unsupported assertion about the size of the unauthorized migrant population is wildly out of line with most estimates. The Department of Homeland Security’s most recent estimate of the number of unauthorized migrants, published in April 2024, counted 11 million unauthorized migrants nationwide, including 2.6 million in California, in 2022. As is common in estimates of the unauthorized migrant population, DHS statisticians included people who have Temporary Protected Status, Deferred Action for Childhood Arrivals, or other forms of legal permission to live in the United States.
More recent estimates by leading research organizations are also lower than Kavanaugh’s figure. Accounting for migration during the last half of Joe Biden’s presidency, the Migration Policy Institute reported in February that there were approximately 13.7 million unauthorized migrants living in the United States in mid-2023, including 3.9 million people with permission to live in the United States temporarily. Last month, the Pew Research Center reported an estimated 14 million unauthorized migrants in the entire United States in 2023. Of those, 2.3 million live in California, according to Pew’s analysis of U.S. Census Bureau data. Pew’s assessment includes 6 million people who have the government’s permission to live in the United States.
If true, Kavanaugh’s claim would mean the Los Angeles region is home to 77 percent of the state’s unauthorized migrant population and 18 percent of the nation’s, as compared to DHS’s evaluation. Similarly, Kavanaugh’s figure attributes to the Los Angeles area 87 percent of California’s unauthorized migrant population and 14 percent of the nation’s unauthorized migrant population as compared to Pew’s analysis. This hard-to-believe and unsubstantiated assertion suggests that the court would have benefited from the kind of detailed fact-finding and briefing common of its merits docket.
In addition to not identifying a source for his assertion, Kavanaugh does not explain how he reached his 15 million figure. In its brief requesting the Supreme Court’s intervention, the Justice Department made a similar claim about the seven-county judicial district, including L.A., where immigration agents’ tactics are being challenged. If that’s the source of Kavanaugh’s assertion, a citation would have been helpful.
Kavanaugh’s uncorroborated assertion isn’t just problematic for its lack of citation. It’s also problematic legally. In immigration law, the difference between having the government’s permission to live here and not having it isn’t just a quirk – it’s everything that matters. People who have been granted TPS, DACA, parole, or any number of other benefits acquire permission to live here. They might lose that permission in the future, but until then, they have permission to live here. Their hold on the future might be “liminal” – as migration scholars have described – but their hold on the present is stark: the government has granted them permission to live here.
Despite not explaining who he is referring to or how he came to this statistic, Kavanaugh does not shy away from given it constitutional significance. In United States v. Brignoni-Ponce, a 1975 decision that Kavanaugh, like the Justice Department, relies on heavily, the Supreme Court allowed Border Patrol agents to consider “Mexican appearance” when deciding who to stop and question about their immigration status. Justice Lewis Powell justified the court’s conclusion by explaining that, according to the government, “there may be as many as 10 or 12 million aliens illegally in the country,” with 85 percent hailing from México. The U.S. Court of Appeals for the Ninth Circuit later cabined Brignoni-Ponce’s embrace of racial profiling in part by noting that the demographic composition of the United States that the Supreme Court relied on in 1975 no longer reflected the nation’s population.
Kavanaugh doesn’t seem to think it relevant that the number of actually unauthorized migrants has not changed much, or may have gone down, in the 50 years since Brignoni-Ponce was decided, but the total population has grown by almost 130 million. The “extraordinary numbers” of unauthorized migrants in the L.A. region justify racial profiling. But if he is going to give immense constitutional significance to data, he needs to tell us where it came from and what it means. Without that he risks appearing to parrot what the Trump administration claims, perhaps hopeful that no one will ask for more.