{"id":62584,"date":"2025-12-26T09:15:27","date_gmt":"2025-12-26T14:15:27","guid":{"rendered":"https:\/\/fourthamendment.com\/?p=62584"},"modified":"2025-12-26T09:35:52","modified_gmt":"2025-12-26T14:35:52","slug":"scotus-kavanaugh-says-immigration-stops-still-require-rs","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=62584","title":{"rendered":"SCOTUS: Kavanaugh says immigration stops still require RS"},"content":{"rendered":"\n

Trump v. Illinois<\/a>, <\/a>2025 U.S. LEXIS 4766 (U.S. Dec. 23, 2025), involving the President calling up the National Guard in Illinois, the government failed to prove an exception to the Posse Comitatus Act. [At first, I elected to omit this, but is Kavanaugh’s concurrence an effort to redeem his “Kavanaugh stops” concurring opinion from September (see posts listed here<\/a>)?] The majority opinion (6-3) on the stay application:<\/p>\n\n\n\n\n\n\n\n

At this preliminary stage, the Government has failed to identify a source of authority that would allow the military to execute the laws in Illinois. The President has not invoked a statute that provides an exception to the Posse Comitatus Act. Instead, he relies on inherent constitutional authority that, according to the Government, allows him to use the military to protect federal personnel and property. But the Government also claims\u2014consistent with the longstanding view of the Executive Branch\u2014that performing such protective functions does not constitute \u201cexecut[ing] the laws\u201d within the meaning of the Posse Comitatus Act.<\/p>\n\n\n\n

Kavanagh, J., concurring, at 8-9 n.4:<\/p>\n\n\n\n

The State\u2019s opposition to deployment of the National Guard appears to stem in part from the State\u2019s underlying objections to the activities of federal immigration officers when they make immigration stops and arrests in Illinois. The State and the Government disagree about whether the immigration officers have violated the Constitution in making certain immigration stops and arrests. The basic constitutional rules governing that dispute are longstanding and clear: The Fourth Amendment requires that immigration stops must be based on reasonable suspicion of illegal presence, stops must be brief, arrests must be based on probable cause, and officers must not employ excessive force. Moreover, the officers must not make interior immigration stops or arrests based on race or ethnicity. Cf. Whren v. United States, 517 U.S. 806, 813 (1996) (\u201c[T]he Constitution prohibits selective enforcement of the law based on considerations such as race\u201d). This application does not require us to delve into the parties\u2019 underlying dispute and to determine whether any particular immigration encounter or series of encounters in Illinois has violated those basic constitutional principles.<\/p>\n","protected":false},"excerpt":{"rendered":"

Trump v. Illinois, 2025 U.S. LEXIS 4766 (U.S. Dec. 23, 2025), involving the President calling up the National Guard in Illinois, the government failed to prove an exception to the Posse Comitatus Act. [At first, I elected to omit this, … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[147,35],"tags":[],"class_list":["post-62584","post","type-post","status-publish","format-standard","hentry","category-immigration-stops","category-reasonable-suspicion"],"_links":{"self":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/62584","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=62584"}],"version-history":[{"count":4,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/62584\/revisions"}],"predecessor-version":[{"id":62592,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/62584\/revisions\/62592"}],"wp:attachment":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=62584"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=62584"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=62584"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}