Reopening the Door to Racial Profiling: The Fourth Amendment After Noem

In September 2025, Los Angeles residents woke to the sound of sirens and helicopters as federal agents swept through car washes, construction sites, and local markets. The operation, called “Operation At Large,” led to the arrest of hundreds of Latino workers within hours. [1] That same morning, the Supreme Court quietly reinstated the raids on its emergency docket in Noem v. Vasquez Perdomo (2025). The decision allowed immigration authorities to resume detentions even as evidence of racial profiling mounted. [2] Justice Kavanaugh’s opinion treats race, language, and occupation as “relevant factors” when determining reasonable suspicion, a line of reasoning that belongs to the racial profiling the Court rejected fifty years ago in United States v. Brignoni-Ponce (1975). [3] At the same time, the majority relies on Los Angeles v. Lyons (1983) to limit who can bring challenges against enforcement programs, shutting out the very communities that face repeated violations. Together, these moves weaken both the Fourth Amendment’s protection against unreasonable searches and the ability to seek relief through the courts. 

The question of what counts as reasonable suspicion has shaped policing for decades. In Terry v. Ohio (1968), the Court ruled that officers could stop and search individuals only when they had “specific and articulable facts” pointing to possible criminal activity. [4] Seven years later, Brignoni-Ponce applied that logic to immigration enforcement, holding that Border Patrol agents could not stop vehicles simply because the passengers appeared to be of Mexican ancestry. [5] Justice Powell’s opinion made clear that ethnicity could not stand alone as a basis for suspicion. Justice Douglas, concurring, warned that expanding Terry’s logic could allow police to “interfere…on the flimsiest of justifications.” [6] His warning is prescient now. In Noem v. Vasquez Perdomo (2025), Justice Kavanaugh adopts a “totality of the circumstances” approach that treats language, race, and occupation as legitimate clues for enforcement. The decision reframes traits linked to identity as pieces of context, making what Brignoni-Ponce prevented (turning demographic features into evidence) reappear under a new label. The shift resembles the reasoning the Court rejected in Brown v. Texas (1979), where police detained a man who refused to identify himself in a “high-crime area.” [7] The Court struck the stop, emphasizing that generalized suspicion based on geography or background could not replace individualized proof. Noem moves in the opposite direction, normalizing broad assumptions about who looks or sounds “suspicious.” The standard of reasonableness now bends toward what is convenient, leaving the Fourth Amendment’s limits increasingly uncertain.

While Noem widens who can be stopped, it narrows who can challenge those stops in court. The decision’s approach to standing relies heavily on Los Angeles v. Lyons (1983), a case that reshaped how courts handle systemic misconduct. [8] In Lyons, a Black motorist sought an injunction to ban police chokeholds citywide after being placed in one during a traffic stop. Writing for the majority, Justice White ruled that he lacked standing because he could not show he was likely to be choked again. [9] The Court held that past harm was not enough to show a live controversy, effectively limiting the courts to individual, backward-looking claims. Justice Brennan dissented, calling the decision “a major step backward for civil-rights litigation.” [10] He warned that it would prevent courts from addressing unconstitutional practices before they happen again. Noem applies Lyons’s reasoning to immigration enforcement, demanding that plaintiffs show they are likely to face another raid before seeking protection. Due to the fact that raids are unpredictable – the Associated Press reports that the uncertainty surrounding ICE raids “scare off workers and baffle businesses” – this standard is nearly impossible to meet. [11] Erwin Chemerinsky, a constitutional scholar and the dean of UC Berkeley School of Law, has written that  Lyons “closed the courthouse doors” to communities seeking structural change. [12] This pattern repeats itself. Justice White once joined the majority in Brignoni-Ponce to safeguard liberty, then authored Lyons to restrict judicial access. Justice Kavanaugh follows that trajectory, expanding government authority while limiting oversight. People targeted by raids are left waiting for harm to occur again before they can ask a court to intervene.

Broadening suspicion while narrowing standing weakens both the Fourth Amendment and due process protections. The requirement for “specific and articulable facts” that guided Terry v. Ohio was designed to protect individual liberty. [13] Brown v. Texas reaffirmed that an officer’s intuition or the demographics of an area could not justify a stop. [14] Noem collapses these principles into a single, permissive framework. Under its “totality” analysis, traits like language or occupation can count as evidence, creating further room for stereotyping. It is the same dynamic Justice Douglas warned of decades earlier, the transformation of the Fourth Amendment into a license for broad, discretionary policing. Devon Carbado, a UCLA law professor who has written extensively on race and policing, has argued that race is built into Fourth-Amendment doctrine, not just into its enforcement. [15] Noem shows how easily that structure can be revived. 

The reasoning in Noem belongs to a broader pattern of the Court’s willingness to defer to the executive branch in matters of enforcement while limiting accountability. In Egbert v. Boule (2022), Justice Thomas wrote that Border Patrol agents could not be sued for alleged Fourth-Amendment violations under Bivens v. Six Unknown Named Agents (1971), arguing that judicial interference in immigration enforcement could raise national-security concerns. [16] Justice Gorsuch went further, suggesting that Bivens itself should be discarded. Aziz Huq, a constitutional law scholar at the University of Chicago, describes this pattern as “constitutional neglect,” where the Court’s deference allows rights to erode through inaction. [17] Noem continues that trend. By expanding what counts as “reasonable” while limiting who can challenge abuses, the Court shifts power toward the enforcement agencies it is supposed to check. Kavanaugh and Thomas, both known for advocating limits on judicial overreach, now use that principle to justify judicial withdrawal.

Noem v. Vasquez Perdomo brings together two moving pieces in modern constitutional law: a flexible notion of reasonable suspicion that reintroduces race into the heart of policing, and procedural rules that make it nearly impossible to challenge these practices. The result is a system where appearance, language, and class can again serve as grounds for suspicion, while courts insist their hands are tied. Under the guise of practicality, the Court has made racial profiling legally sustainable once again. For communities repeatedly targeted by immigration enforcement, the Fourth Amendment no longer protects—it permits. 

Edited by Arjun Ratan and Christina Park

[1] Michelle Krupa, Elizabeth Wolfe, and Norma Galeana, “Tensions are rising in Southern California over immigration raids. Here’s what we know,” CNN, July 13, 2025. https://www.cnn.com/2025/07/11/us/california-immigration-raids-la-wwk.

[2] Noem v. Vasquez Perdomo, 598 U.S. (2025). https://www.supremecourt.gov/opinions/24pdf/25a169_5h25.pdf

[3] United States v. Brignoni-Ponce, 422 U.S. 873 (1975). https://supreme.justia.com/cases/federal/us/422/873/

[4] Terry v. Ohio, 392 U.S. 1 (1968). https://supreme.justia.com/cases/federal/us/392/1/

[5] United States v. Brignoni-Ponce, 422 U.S. 873 (1975). https://supreme.justia.com/cases/federal/us/422/873/

[6] United States v. Brignoni-Ponce, 422 U.S. 873 (1975). https://supreme.justia.com/cases/federal/us/422/873/

[7] Brown v. Texas, 443 U.S. 47 (1979). https://supreme.justia.com/cases/federal/us/443/47/

[8] Los Angeles v. Lyons, 461 U.S. 95 (1983). https://supreme.justia.com/cases/federal/us/461/95/

[9] Los Angeles v. Lyons, 461 U.S. 95 (1983). https://supreme.justia.com/cases/federal/us/461/95/

[10] Los Angeles v. Lyons, 461 U.S. 95 (1983). https://supreme.justia.com/cases/federal/us/461/95/

[11] Elliot Spagat, “ICE raids and their uncertainty scare off workers and baffle businesses,” Associated Press, June 19, 2025. https://apnews.com/article/trump-immigration-ice-raids-undocumented-workers-aa451dc90dda76004fdc5636b21bde97

[12] Erwin Chemerinsky, “Closing the Courthouse Doors,” Journal of Appellate Practice and Process 22 (2019). https://www.jstor.org/stable/pdf/26408487.pdf?refreqid=fastly-default%3Ab8f22e33236186c29d571b079abb8e7a&ab_segments=&initiator=&acceptTC=1

[13] Terry v. Ohio, 392 U.S. 1 (1968). https://supreme.justia.com/cases/federal/us/392/1/

[14] Brown v. Texas, 443 U.S. 47 (1979). https://supreme.justia.com/cases/federal/us/443/47/

[15] Devon W. Carbado, “(E)racing the Fourth Amendment,” Michigan Law Review 100 (2002): 946. https://repository.law.umich.edu/cgi/viewcontent.cgi?params=/context/mlr/article/1897/&path_info=uc.pdf

[16] Egbert v. Boule, 596 U.S. (2022). https://www.oyez.org/cases/2021/21-147

[17] Aziz Z. Huq, “Constitutional Neglect,” University of Chicago Law Review 85 (2018): 239–256. https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=12158&context=journal_articles