Undocumented Immigrants and the 4th Amendment

First off, the Supreme Court "refused to step in, for now, in a dispute over one transgender student's bathroom access in South Carolina." 

It stated that it was not ruling on the merits but was only acting, given the rules for emergency action. 

How they applied such rules was not cited. Notably, it gave that reminder here. Thomas, Alito, and Gorsuch, without saying why, would have granted a stay. 

It is depressing that this is still an issue in 2025, but that is where we are at. 

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I also wanted to say more about this week's ruling regarding ICE searches and seizures of possible undocumented persons. Kavanaugh's concurrence assumes they have Fourth Amendment protections. 

Also, a major concern here is the wrongful treatment of documented persons and citizens. Still, what about undocumented immigrants, particularly? What rights do they have in this context? 

The Fourth Amendment speaks of "the people." Are undocumented persons members of this class? The question does not appear to have been conclusively decided by the Supreme Court. There is usually a way to avoid it, again, because the rights of clearly protected people are involved.

Undocumented persons are constitutional "persons" who are protected by the Fifth and Fourteenth Amendments. The Supreme Court has long held that those here "illegally" are protected. Shaughnessy v. U.S. (1953):

It is true that aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law. The Japanese Immigrant Case, 189 U. S. 86, 189 U. S. 100-101 (1903).

Plyer v. Doe reaffirmed that both due process and equal protection apply, including when the federal government is involved (the Fifth Amendment has an equal protection component). The right to expel someone does not bring unlimited power. 

Since unreasonable searches and seizures invade "liberty" (how else was it incorporated?), why doesn't due process cover this ground at any rate? The reference to "the right of the people" probably primarily limited the rights of slaves. 

U.S. v. Verdugo-Urquidez held that "the people" included "a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community." 

Undocumented immigrants, at least some of them, should meet that test. They can be here for a long time, have jobs, citizen families, and so forth. That is, if you read that test reasonably. The law is not always reasonable. So what does it say? 

A previous Supreme Court opinion (INS v. Lopez-Mendoza) assumed they had Fourth Amendment protection. This one made sure to say that the question was left open since it was dicta. 

Undocumented persons are persons. They have rights. These rights are based on the Constitution, statute, and international law. Can an undocumented minor be subjected to a strip search in a way that shocks the conscience? 

All persons, no matter their documentation, will ultimately be protected from unreasonable searches and seizures. At least to some degree. 

ETA: Sotomayor stayed a trial pursuant to a request that argued it was warranted by an upcoming case.