When a conservative Supreme Court Justice such as Brett Kavanaugh takes the extraordinary step of reciting the Fourth Amendment’s core principles in a shadow docket immigration decision, it is important not to overlook this shift in opinion. In Trump v. Illinois, the Court’s refusal to stay a lower court injunction against the deployment of the National Guard in Illinois was accompanied by a concurrence from Justice Kavanaugh that did more than affirm the procedural result; it reiterated foundational constitutional constraints on immigration enforcement.1 This was dropped in footnote 4 of the Court’s decision. Justice Kavanaugh curiously placed this footnote in the decision and in doing so addressed immigration stops conducted by ICE although this was not an issue before the Court. Justice Kavanaugh, in doing so, appears to return to his concurrence in Noem v. Vasquez Perdomo, which gave the green light to ICE’s racial profiling in immigration policing. Justice Kavanaugh’s footnote appears to dial back the greenlight given in Noem, presumably because of the disastrous results that have occurred when ICE was given free rein to pick up and detain anyone who looked Hispanic.
I. Kavanaugh’s Constitutional Reaffirmation in Trump v. Illinois
The Trump v. Illinois litigation arose from the Trump Administration’s attempt to deploy approximately 300 members of the Illinois National Guard pursuant to 10 U.S.C. § 12406(3) to protect federal personnel and property, including immigration enforcement operations in the Chicago area.2 The Supreme Court denied the government’s emergency application for a stay of the district court’s restraining order.3 Justice Kavanaugh concurred in the judgment but went further in one of his footnotes highlighting that the State of Illinois opposed deployment at least in part because of perceived constitutional violations by federal immigration officers:
Here, Kavanaugh implicitly acknowledges that allegations of constitutional violations in immigration enforcement are not frivolous and are subject to judicial scrutiny. Moreover, the footnote reaffirms the Supreme Court’s Fourth Amendment jurisprudence that has long rejected immigration exceptionalism in warrant and suspicion standards, tracing its lineage to decisions such as Whren v. United States, which prohibits selective enforcement based on race.5 This emphasis on constitutional limitations, even from a conservative justice known for deference to executive authority, reflects judicial concern over patterns of federal misconduct.
Contemporary Evidence of DHS Abuse and Judicial Pushback
The judicial skepticism embodied in Trump v. Illinois is warranted in light of recent events and federal lawsuits highlighting a troubling pattern of procedural violations and coercive tactics that have prompted state resistance.
A. Holiday Check-ins for Afghan Allies: ICE’s Pattern of Targeting the Vulnerable
Perhaps the most cynical manifestation of DHS’s overreach emerged during the 2025 holiday season. U.S. Immigration and Customs Enforcement issued summonses to Afghan nationals residing in the United States to report to ICE field offices on Christmas Day, New Year’s Day, and adjacent holidays.6 Notably, many of the individuals summoned had been granted protection under Operation Allies Welcome, a Biden-era humanitarian program designed to resettle Afghans who aided the U.S. military in Afghanistan.7
While ICE framed these mandatory check-ins as routine administrative procedures, advocacy leaders such as Shawn VanDiver, founder of the AfghanEvac coalition, described the move as a deliberate attempt to target Afghan refugees when access to legal counsel and judicial relief was practically unavailable.8 This criticism stems from ICE historically arresting individuals who appear for scheduled interviews, including those seeking to adjust their immigration status, leading to justified fears that the holiday check-ins were pretexts for detention.9
The timing followed the politically charged shooting of two National Guard members by an Afghan national in November 2025, after which the Trump administration began reassessing and freezing immigration benefits for Afghan refugees10. These developments stand in direct conflict with the principle of equal protection and reinforce the importance of Justice Kavanaugh’s reminder in Trump v. Illinois that immigration enforcement must respect constitutional boundaries, especially in encounters that risk detention, racial profiling, or undue coercion.
B. DHS Illegally Withheld Federal Homeland Security Grants
In late 2025, a federal district court in Rhode Island ordered DHS and the Federal Emergency Management Agency (FEMA) to restore more than $233 million in homeland security grants to states labeled as “sanctuary jurisdictions.” The court found the administration’s reallocation of these funds was unlawful and politically motivated, violating the Administrative Procedure Act11. The grants were allocated under the Homeland Security Grant Program and the Emergency Management Performance Grant Program, which support terrorism preparedness and response.
U.S. District Judge Mary S. McElroy characterized the decision to slash funds just before the end of the fiscal year as punitive and inconsistent with the agencies’ statutory duties12. Judge McElroy emphasized that linking critical security funding to cooperation with federal immigration enforcement represented an abuse of administrative authority and undermined public safety13. This ruling underscores that DHS’s conditional funding constituted unlawful agency action that yet again exemplifies the irrationally abusive behavior DHS continues to pursue.
C. Federal Government’s Litigation Against State Immigration Protections
In a separate action, the government challenged the Court Access Safety and Participation Act (CASPA), which prohibits civil arrests in and around state courthouses.14 The complaint alleged that CASPA unlawfully regulates federal officers and impedes federal enforcement operations by restricting where arrests may occur, even though courthouse arrests often enhance public safety. Unlike the state provisions struck down in Arizona v. United States, CASPA does not attempt to regulate immigration directly or create parallel enforcement schemes.15 Rather than interfering with federal immigration law, CASPA is a neutral measure that seeks to protect the integrity of state judicial proceedings and ensure that litigants, victims, and witnesses can safely access state courts.
Whereas the Arizona law at issue in Arizona v. United States attempted to impose state penalties for violations of federal immigration law and to authorize state officers to make immigration-related arrests, CASPA does not create new immigration rules or punishments but rather exercises core state police powers over court administration and public safety.16 As the Court cautioned in Arizona, courts must presume that “the historic police powers of the States” are not preempted “unless that was the clear and manifest purpose of Congress.17” Because CASPA does not intrude into the field of immigration regulation or obstruct federal objectives, this law should stand and put the Executive Branch on notice of emerging repercussions of their overreach.
Conclusion
Trump v. Illinois marked not merely an interim procedural decision on the shadow docket but a reassertion that reasonable suspicion, probable cause, and racial neutrality are not optional constraints to be suspended in the context of immigration enforcement. The contemporaneous litigation against DHS and ICE demonstrates that abuses of power have become sufficiently pervasive to elicit fervent and robust judicial and state responses. Together, these developments reaffirm that even the Supreme Court’s conservative wing recognizes that executive power must remain tethered to constitutional and statutory limits.
1 Trump v. Illinois, No. 25A443, 2025 U.S. LEXIS 4766, n.4 (2025) (Kavanaugh, J., concurring).
2 Id. at 1.
3 Id. at 3.
4 Id. at n.4.
5 Whren v. United States, 517 U.S. 806, 813 (1996).
6 Hadriana Lowenkron, US Tells Afghan Migrants to Report on Christmas, New Year’s Day, Bloomberg Law (Dec. 25, 2025), available at https://news.bloomberglaw.com/immigration/us-tells-afghan-migrants-to-report-on-christmas-new-years-day
7 Id.
8 Id.
9 William Menard, Opinion: ICE Arrests at Green Card Interviews Are Outrageous, San Diego Union-Trib. (Dec. 12, 2025), https://www.sandiegouniontribune.com/2025/12/12/opinion-ice-arrests-at-green-card-interviews-are-outrageous/
(describing ICE’s practice of arresting individuals during scheduled green card interviews, including applicants with no criminal history, and documenting multiple same-day detentions at a single USCIS field office).
10 Hadriana Lowenkron, supra note 7.
11 Chris Villani, DHS Ordered to Restore $233M Grants to “Sanctuary” States, Law360 (Dec. 23, 2025, 1:37 PM EST),
https://www.law360.com/newyork/articles/2425149/dhs-ordered-to-restore-233m-grants-to-sanctuary-states
12 Id.
13 Id.
14 Celeste Bott, Trump Admin Sues to Undo Ill. Immigrant Protection Laws, Law360 (Dec. 22, 2025, 6:58 PM EST),
https://www.law360.com/articles/2424953/trump-admin-sues-to-undo-ill-immigrant-protection-laws
15 Arizona v. United States, 567 U.S. 387 (2012).
16 See id. at 401–03.
17 Arizona, 567 U.S. at 400 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).