How a Racial Conspiracy Theory Took Hold in America

Immigration and growing diversity have become lightning rods for white fear of “replacement”

Diversity is increasing in the US. Last month, researchers at the Hofstra School of Medicine published a study finding that, according to CDC data, non-white births outpaced white births in the US for the very first time in 2024. White births constituted 49.6% of all births, and the proportion of all nonwhite groups hit 50.4%, with Hispanic, Black, and Asian births being the largest subsets.

These demographic shifts have stoked fear in people concerned with maintaining a white majority in the US. One such person is Elon Musk. 

Nearly every day last month, Musk took to X to megaphone his fears about race. As The Guardian reported, “The richest man in the world posted about how the white race was under threat, made allusions to race science or promoted anti-immigrant conspiracy content on 26 out of 31 days in January.” 

On January 9, for example, Musk re-shared a post that read, “If White men become a minority, we will be slaughtered… [and people who aren’t white] will be 1000x times more hostile and cruel when they are a majority over Whites. White solidarity is the only way to survive.” He added the “100” emoji, indicating agreement.

In another instance, on January 22, Musk posted, “Whites are a rapidly dying minority.”

Musk has tremendous cultural and social influence. On X, he reaches an audience of over 200 million. He was the single largest donor to 2024 political campaigns — donating close to $300 million to Republicans and Republican causes — and he spent part of last year as a special government employee working alongside the president. 

Now he is amplifying claims about an impending “white genocide,” which will “eradicate white people.” This fanaticism is tied to something called “replacement theory” or “white replacement theory,” a conspiracy theory that white people are under threat of being overtaken and replaced.

The origins of replacement theory

Replacement theory can be traced to Le Grand Replacement (“The Great Replacement”), a 2011 book by French author Renaud Camus. 

In a time of increased immigration to France in the early 2000s, Camus saw the increased presence of Muslims as a threat to French culture. Thus, Le Grand Replacement speaks of immigration with terms like “replacist” and “invasion.” Camus claimed in a 2017 New Yorker interview with Thomas Chatterton Williams that he is not part of the “extreme right.” He just “wanted France to stay French.”

Camus had previously written novels exploring sexuality before this stark pivot to anti-immigration advocacy, so he didn’t seem like a likely candidate to start a revolution. But, in the years that followed the publication of Le Grand Replacement, France was experiencing a migrant crisis. This seemed to give credence to Camus’s warnings and boosted the book’s popularity among far-right groups across Europe. 

Camus’s ideas would seem to have less applicability in the US, a nation of immigrants. Unlike Europe, where nations are often defined around a dominant ethnicity in its homeland, the US is a nation of immigrants. “It is ludicrous,” Williams writes, “for a resident of the United States to talk about ‘blood and soil.’” But despite this inherent tension, in just a few years, ideas from this obscure Frenchman would make inroads in the American political landscape. 

Replacement theory gets Americanized

The theory’s meaning shifted when it broadened beyond Camus’s original application to France and took hold in the US. As it slowly spread through fringe corners of the internet and conspiracy groups, a distinctly American version of replacement theory formed.

Both versions of replacement theory — Camus’s version and Americans’ version — have cultural as well as political concerns, but the difference is in which they see as primary or secondary. Camus spoke mainly of cultural upheaval, and saw it as something which carried unfortunate political implications. But in the US, the threat of political upheaval is treated as primary, and it’s seen as something which brings unfortunate cultural implications. 

In Camus’s framing, “white replacement” takes place because of geopolitical factors such as foreign wars and resulting migration. In the US, replacement is not spoken of as an unfortunate byproduct, but as a sinister plan being carried out by bad actors for political ends. 

Tucker Carlson is particularly responsible for spreading the notion that Democrats favor immigration as a way of changing the electorate. Over the course of five years on his Fox News show, he made this claim 400 times. In September 2021, Carlson told his audience that the border policy under Biden, which saw increased unauthorized border crossings, was a way to “change the racial mix of the country.” He explained, “In political terms this policy is called the ‘great replacement,’ the replacement of legacy Americans with more obedient people from faraway countries.”

Carlson also said, "I know that the left and all the gatekeepers on Twitter become literally hysterical if you use the term 'replacement,' if you suggest the Democratic Party is trying to replace the current electorate… with new people, more obedient voters from the Third World. But they become hysterical because that's what's happening, actually, let's just say it. That's true." 

Carlson claimed that this replacement is already in progress and will be “suicidal” for the US unless the country reverses the trend of nonwhite immigration. Other conservative commentators, such as Matt Walsh and Charlie Kirk, agreed, speaking of “replacement” as a threat to our democracy. 

Walsh has claimed, “This isn’t a conspiracy theory… It’s just a fact.” Charlie Kirk echoed this, saying, “The left literally needs endless, constantly increasing migration from the third world… The great replacement strategy, which is well underway every single day… is a strategy to replace white rural America with something different… They have a plan to try and get rid of you… and they won't stop until you and your children and your children's children are eliminated.”

Some elected Republican officials, such as former Wyoming Representative Liz Cheney and former Illinois Representative Adam Kinzinger, criticized and condemned the promotion of replacement theory, as others voiced agreement. Former Florida Representative Matt Gaetz tweeted that Tucker Carlson “is CORRECT about Replacement Theory and what is happening to America.” Current Pennsylvania Representative Scott Perry, said “what seems to be happening [is]… we're replacing… native-born Americans, to permanently transform the landscape of this very nation.” 

Just last week, in the congressional testimony of Jeremy Carl, who has referenced Camus and espouses replacement theory, defended his past claims about the erasure of white culture, pointing to immigration as a threat that “weakens” this culture.

It’s not surprising, then, that a large fraction of Americans express agreement with the milder offshoot of replacement theory — voter replacement — even if they wouldn’t take it nearly as far as existential race fears. A 2022 study from the Associated Press and the NORC Center for Public Affairs Research found that nearly one in three Americans agree with core claims of replacement theory, such as the idea that “a group of people are trying to replace native-born Americans with immigrants for electoral gains.” Another 2022 poll, by Yahoo News and YouGov, found that among people who voted for Trump, this was a majority view, at 61 percent. 

Violent extremism

Replacement theory has contributed to a wave of extremist violence. The manifestos of just about every mass shooter in the last decade motivated by white supremacy have directly cited replacement theory as the message they hope to spread in the world. To give a handful of examples:

In August 2017, at the “Unite the Right” rally in Charlottesville, VA, crowds of white people chanted, “You will not replace us” and “Jews will not replace us,” and an attacker deliberately drove his car into a crowd of peaceful counter-protesters. He killed one and injured 35 others in the attack.

In October 2018, a shooter killed 11 people in a Pittsburgh synagogue, injuring six more. The shooter said he carried out the attack because he believed that HIAS, a Jewish nonprofit, was working to “bring invaders in that kill our people” and that he “can't sit by and watch my people get slaughtered.”

In March 2019, in Christchurch, New Zealand, a shooter killed 51 people in a pair of attacks targeting Muslims. Forty-nine more were injured. The shooter’s manifesto, titled “The Great Replacement,” was exactly what it sounds like. This particular attack was referenced by two copycat killers in the US who carried out terrorist attacks in California and El Paso before the year was over.

In April 2019, a shooter who attacked a California synagogue, killing one person and injuring two more, said he did so because he believed Jews were "destroying the white race” and was inspired by the Pittsburgh and Christchurch attacks. 

In August of the same year, a shooter entered an El Paso Walmart, killing 23 people and injuring dozens more. Just before he carried out the attack, he shared a replacement theory manifesto online, referencing “cultural and ethnic replacement” and the “Hispanic invasion of Texas.” He turned himself in and was forthright in explaining that he was targeting Hispanics. 

In May 2022, a shooter carried out an anti-Black attack in a grocery store in Buffalo, New York, killing ten people and injuring three others. He shared a 180-page white supremacist manifesto that centered on replacement theory.

Despite how extremists have interpreted and acted on his warnings about a white genocide, Camus maintains his cause. Camus spoke to the Washington Post after the Christchurch attacks, saying he has condemned the violence carried out by his adherents — but in this same conversation, “Camus added that he still hopes that the desire for a 'counterrevolt' against 'colonization in Europe today' will grow, a reference to increases in nonwhite populations.”

The dawn of increasing diversity

Talk of “white replacement” necessarily endorses a racialized, zero-sum view of the world, so it’s no surprise that this rhetoric has been a catalyst for extremism.

But in reality, white people are not facing an existential threat, nor are they suffering from systemic discrimination. White Americans fare better by essentially every metric for success. They have, on average, higher incomes, much more wealth, better health outcomes, and longer lifespans than their non-white counterparts.

As for the changing racial demographics of the US, they are not due to a conspiracy to decrease the white population. The fact is that white women in the US, Hofstra researchers found “tend to delay childbirth, which often leads to difficulties conceiving and a decision to have fewer children.”

According to Census Bureau projections, we are roughly two decades out from a time when white people will constitute less than half of the US population overall, becoming a numerical “minority.” Even then, white Americans will still be the largest group by far. White Americans are projected to make up 49.7% of the total population in 2045, which is roughly double and four-times the population of the two next-largest groups, Hispanic (24.6%) and Black Americans (13.1%). 

The way we make sense of demographic shifts matters. Researchers at USC have found that how white people respond to news of changing American demographics depends on how it is framed. When the data are presented in a way that positions white people as a dwindling minority, this “greatly heightens expectations of rising anti-white discrimination,” which isn’t surprising. “But, crucially, no other story” — no other way of speaking about rising racial diversity — “yields this effect.” The issue is a narrative that reinforces stark binaries and positions racial groups as battling each other in a zero-sum struggle for power. 

Plus, it is misleading to say that white people are soon to be a “minority” to a non-white “majority” — “non-white” is not a single uniform group. It would be more accurate to say that we are approaching a future where no single racial group in the country is a numerical majority. 

As the USC researchers point out, “the ongoing rise of mixed-race marriage and multiracial identification” can be understood as “trends that are expanding… and blurring traditional color lines in the 21st century.” We do not need to default to the language that people of color’s gains, or mere existence, will lead to white people’s losses, pulling from the same scripts that have been historically used to convince us that we are fundamentally opposed to one another and competing along racial lines. These demographic shifts do not indicate a tipping point in which white people become losers. They may, instead, represent the dawn of a truly multiracial society, wherein it may be more possible for the categories of become less distinctive and meaningful — which is to say, less real.

The Theft That Built a Nation

The story of Black land loss—and how generations of stolen acres shaped America’s racial wealth gap.

At the close of the Civil War, Black freedmen spoke with Union military officials who famously promised “40 acres and a mule.” Following emancipation, Union General William T. Sherman signed Special Field Order 15, declaring that 400,000 acres of land in South Carolina would be divided among the formerly enslaved. But the order was rescinded by President Andrew Johnson. Formerly enslaved Black people in America would be starting from nothing. 

Upon being freed, they turned to agriculture. Millions of Black people had no choice but to enter into exploitative sharecropping arrangements, working the land in exchange for a small share of the crops. White landowners’ contracts were often designed to keep Black sharecroppers trapped, bound by a debt they couldn’t escape. This is why sharecropping is sometimes called “slavery by another name.” It took decades to overcome a system that was set against them, but eventually, Black people began buying property of their own. Black ownership of farmland had a meteoric rise, peaking in 1910, with estimates ranging between 12.8 million and 16 million acres. In 1920, The New Yorker reports, “African Americans, who made up ten per cent of the population, represented fourteen per cent of Southern farm owners.” But throughout the 20th century, rampant racism against Black farmers at the local and federal levels led to land theft of massive proportions.

Between 1910 and 1997, Black farmers lost more than 90 percent of their land. 

The American Bar Association gathered experts to calculate the total value of Black farmers’ land loss during this period; they arrived at a conservative estimate of $326 billion. “To put this figure in perspective, if this represented the gross domestic product (GDP) of a country” in 2020, Black Americans’ wealth would’ve been in the top 20% — ranking “ahead of South Africa, Finland, and New Zealand.” But as it stands, Black Americans today have 85% less wealth on average than white Americans. One of the researchers, Nathan Rosenberg, told a journalist from The New Yorker, “If you want to understand wealth and inequality in this country, you have to understand black land loss.”

Systemic racism 

Even when Black farmers could buy their own land, it was very difficult to keep ownership of it. According to the American Bar Association, “in addition to theft by state-sanctioned violence, intimidation, and lynching, Black farmers also lost land due to discrimination by banks and financial institutions.” Loans were controlled by bankers and federal funding was typically channeled through local committees and southern elected officials, meaning white southerners held the purse strings. By denying federal farm benefits to Black land owners, they could directly benefit white farmers in the community. And if discrimination impacted Black farmers so badly that they eventually had to sell their land, that directly benefited white farmers, too. 

Farming is a zero-sum game — not just in competing for the land itself, but in competing for federal funding, too. The United States Department of Agriculture (USDA) is the arm of the federal government that provides aid to farmers, playing an especially important role since the 1930s. “After the New Deal, the USDA became more involved in managing crop prices through subsidies and helping farmers weather price changes with loan and credit programs,” explains FoodPrint, a nonprofit focused on food production practices. These USDA supports “eventually became an integral part of farm survival.” The problem is, Black farmers have consistently received less aid from the USDA than white farmers: “In 1965, the U.S. Commission on Civil Rights determined that the USDA’s loan programs had discriminated against Black farmers, leaving them out of payouts that their white counterparts had received.” This was no accident. USDA agents often colluded with white bankers and farmers, creating arrangements from which they all stood to benefit.

Time highlights the unique challenges of being a Black person in the rural south. “Traditional civil rights narratives have typically centered urban spaces like Atlanta, Birmingham, or Memphis. Yet even as the civil rights revolution brought significant gains to Black residents of those cities, the story was very different in rural places.” The high racial tensions of the civil rights era extended to rural areas, but the gains won in larger cities did not. Racist white people who were upset by racial progress were doubly committed to finding ways to hinder Black advancement. “Land loss was one of these [tactics].”

The single greatest cause of Black involuntary land loss is a policy called heirs’ property. If a landowner dies without a will, their land is automatically passed down to their heirs. Black Americans were distrustful of the white southern court system and had reservations about creating wills or signing any documents that could work against them. Instead, they considered heirs’ property — which involves the legal system minimally and does not require a formal contract — the safest way to keep their land with their descendants. 

But in practice the exact opposite happened. The land did not stay with their heirs — nearly all land owned by Black people has been taken because of this policy. 

Heirs’ property is complicated because, as FoodPrint reports, “as time goes on, every additional descendant of the original deed holder — every new grandchild or great-grandchild — also qualifies as an heir and part-owner.” The property is jointly owned by an ever-increasing number of heirs. Here’s the kicker: “Without a clear title that ascribes ownership of the land to a single farmer, land managed as heirs’ property cannot qualify for federal aid programs.” Heirs’ property misses out entirely on aid from the USDA, which modern farms cannot survive without. With mounting costs and taxes, a forced sale becomes inevitable — and predatory buyers readily snatch up land at below-market value. 

Pigford v. Glickman 

The USDA has long subjected Black farmers to more loan delays and denials — both of which give farmers no choice but to enter into high-interest bank loans in order to buy needed supplies like seed and fertilizer ahead of the growing season. Delays and denials have a snowball effect. When Black farmers receive less USDA aid and have to take on more high-interest loans, payments are more costly, making farmers more reliant on loans. This is reflected in their credit history, which makes them less likely to be approved for future loans. After it was proven that Black farmers were systematically discriminated against in 1965, the USDA created a civil rights office for dealing with discrimination claims. The office was shuttered by the Reagan administration, however, and wasn’t reopened until 1996 under Clinton. Few claims were resolved until, in 1999, thousands of Black farmers jointly sued the USDA.

The class-action lawsuit Pigford v. Glickman vindicated thousands of Black farmers. Black farmers who had unresolved discrimination claims against the USDA could settle for upwards of $50,000 if they had sufficient proof that loan delays hurt their farm. The case primarily dealt with discrimination between 1983 and 1997, and the total payout was more than $1 billion, to more than 15,000 farmers who could prove discrimination. A decade later, in 2010, Pigford II brought justice for farmers who missed out on the first case. Another 17,000 claims were settled, for more than $1.25 billion. At more than $2.25 billion total, Pigford I and II were the largest civil rights settlements in history. Though some misleadingly called them a handout, the payout for any single farm wasn’t nearly enough to make up for the decades of discrimination.

Racism persists today

There are one million fewer Black farmers today than there were a century ago. Forty-five thousand Black farmers remain, making up 1.3% of American farmers. Former Agriculture Secretary Tom Vilsack pointed out that initially, only 0.1% of Covid farm aid went to Black farmers — one-thirteenth of what would be proportionate — and 99% went to white farmers. Then, in 2021, Congress passed a $5 billion targeted debt-relief package for Black farmers in an attempt to lessen racial inequities. But it was shut down by a lawsuit alleging that white farmers were being discriminated against, so in 2022, a $2 billion race-neutral program for all “financially distressed borrowers” was created in its place. This significantly decreased and diluted the aid for Black farmers.

Even now, there are major racial disparities in how USDA aid is distributed. NPR analyzed USDA data to find the racial breakdown of acceptance, rejection, and withdrawal rates for direct loans. “Direct loans are supposed to be among the easiest to get at USDA,” it explained. “They are meant for farmers who can't get credit elsewhere.” But because of the snowball effect, discrimination in the past creates grounds for disparities in the present. In 2022, the acceptance rate was only 36% among Black farmers. White farmers had twice the acceptance rate, at 72%. Black farmers’ applications were rejected four times as often as white farmers’ (16% vs. 4%) and withdrawn twice as often as white farmers’ (48% vs. 24%). 

The USDA is no longer acknowledging or addressing its racist history. FoodPrint writes, “The second Trump administration has declared that the USDA has ‘sufficiently addressed’ its history of racial discrimination.” The Trump administration has taken hard stances against DEI, and the USDA is not exempt from these changes. All USDA efforts to specifically support Black farmers were shut down — though it’s not clear how these persistent racial disparities could be lessened through race neutrality. 

A 2010 law, the Uniform Partition of Heirs Property Act (UPHPA), has been introduced in 26 states and Washington, DC, to protect heirs’ property, though it would need reform to truly protect the most vulnerable farms. Thankfully, nonprofits are standing in the gap and taking on the work of protecting Black landowners’ property. The Center for Heirs’ Property is working to prevent Black land loss. This is important given that, according to The New Yorker, “76% of African Americans do not have a will, more than twice the percentage of white Americans,” and even today “heirs’ property is estimated to make up more than a third of Southern black-owned land — 3.5 million acres, worth more than $28 billion.” 

At the close of the Civil War, when Sherman met with Black leaders representing freed Black people, Garrison Frazier said, “The way we can best take care of ourselves is to have land” and “reap the fruit of our own labor. ” If asked today, many Black Americans would reiterate some version of this same goal.

White People Are the Default Americans

The success of racial minorities is seen as an exception

In a speech last month, Secretary of Defense Pete Hegseth said that the armed forces had “promoted too many uniformed leaders for the wrong reasons, based on their race, based on gender quotas, based on historic so-called firsts.” He called for countering past diversity efforts as a way of “clearing out the debris.” 

Hegseth seemed to be making a common assumption: that white people are the default race, the ones naturally deserving of success and recognition, and that nothing but “debris” is lost when people of color are absent from positions of power. 

Previously, Hegseth speculated that top military officials were DEI hires, specifically naming Air Force General Charles Q. Brown in his 2024 book. Brown was the first Black person to head a branch of the military and became chairman of the Joint Chiefs of Staff under Biden. Trump then fired Brown and appointed Air Force Lieutenant General Dan Caine in his place. Caine, who had already retired and lacked Brown’s experience and honors, did not meet the requirements set by law for the position, but the law also allowed Trump to waive them, which he did.

General Brown was accused of not being held to equal standards because of his race and not earning his position — despite the objective fact that he met every standard and, ironically, his white successor did not. Hegsesth's desire to have Brown fired seems to have been based on his own tacit racial judgment of Brown’s achievement. This false dichotomy of “We don’t want diversity, we want merit” traps racial minorities in perpetual suspicion. 

That is the paradox of prejudice, and of seeing white as the norm. When you believe that people of color must be underqualified, they are forced to become overqualified and go above and beyond to prove themselves. In the end, racial minorities aren’t just held to equal standards, but to higher ones. 

In a 2024 podcast episode, Charlie Kirk said, “I’m sorry. If I see a Black pilot, I’m gonna be like, ‘Boy, I hope he’s qualified.’” Following criticism, he went on Megyn Kelly’s podcast to defend his remarks. “Of course I believe anybody of any skin color can become a qualified pilot,” he said. He explained that his point wasn’t to endorse prejudice, but to blame DEI for leaving us with no choice but to “look at everything through a hyper-racialized diversity-quota lens.” In the wake of DEI, he argued, it’s reasonable to conclude that a white person is truly qualified and a person of color may not be. That is, he described racial stereotyping not as an evil but as a rational judgement.

On another occasion, he named four accomplished Black women in politics and journalism and said they "do not have the brain processing power” to be taken seriously. “You have to go steal a white person's slot." 

Kirk’s basic premise was that because of DEI, some Black people have been taking what isn’t rightfully theirs — even though, in the history of this country, or even just in the last century, that can’t possibly have been done by Black people nearly as much as it’s been done to Black people. From piloting to politics, Kirk believed that when it comes to achievement, white is to be expected and diverse outcomes are an exception.

This is the difference between seeing a Black pilot and wondering, “How did he make it through? What strings were pulled to achieve that outcome?” and seeing only white pilots and wondering, “Where are all the people of other races who could be pilots, but aren’t? What’s standing in their way?” Kirk said that race should not be an advantage or a disadvantage, but he didn’t voice concern with the ways that white people are more likely to have gotten a leg up — such as intergenerational wealth, legacy admissions, nepotism, or simple “it’s not what you know, it’s who you know” connections. By his own logic, these factors should cast doubt on all white pilots. But the race-based prejudice goes in only one direction. Kirk is not alone in this view. He was seen as a mouthpiece for millions — like Trump, often considered a leader brave enough to say what many are thinking.

Even if we don’t speak them out loud, we all have both covert and overt beliefs about who meets the standard. Race affects who gets the benefit of the doubt and shapes where we place the burden of responsibility. For example, Trump says he plans to provide a big bailout for farmers. Investment in rural populations is mostly bipartisan, and the decline in rural standards of living is viewed as a failing of the government. In stark contrast, investment and reparations in minority urban areas are extremely partisan, and the decline in urban standards of living is seen as a failing of the citizens. The situations admittedly differ in many regards, but one of them is race. 

In recent years, more scholars have sought to bring recognition to the fact that white people are not just the race-less norm. White people have a racial identity and social location, just the same as everyone else, though it may be invisible to them. Peggy McIntosh, the white scholar who coined the term “white privilege,” explains: “As a white person, I realized I had been taught about racism as something which puts others at a disadvantage, but had been taught not to see one of its corollary aspects, white privilege, which puts me at an advantage.” White people tend to see themselves as outside of the system of race, even if they are race-conscious when it comes to other groups. As in, they may think that other people have a racial identity, but they themselves are just people. A white pilot is a pilot; a Black pilot is a Black pilot. A white politician is a politician; a Black politician is a Black politician.

Generally speaking, white people have the privilege of being seen as individuals rather than as representatives of their race. This is why some say we should strive to be more conscious of whiteness, even as we decrease the salience of race for people of color, bringing these disparate racial experiences into balance. Others say that, instead, we should strive to be less conscious of all races. 

There’s a common saying that Black people have to work twice as hard to get half as far. This relates to Claude Steele’s research on stereotype threat, which he presents in Whistling Vivaldi. Stereotype threat is triggered by the fear that you might be stereotyped, causing you to feel “at risk of confirming, as self-characteristic, a negative stereotype about one's group.” It leads to over-efforting, performance anxiety, and underperformance. In other words, it leads to working twice as hard and getting half as far — all prompted by the sense that you must set out to defy others’ low expectations of you. Instead, those expectations become a sad, self-fulfilling prophecy. This is the burden W.E.B. Du Bois called double-consciousness: “this sense of always looking at one’s self through the eyes of others.”

It creates issues when we normalize the assumption that people of color are likely to be less qualified or capable, or that they are infringing on what should default to a white person. It is critical that every single person of color be seen just as they are, so they can show you what they are capable of. 

The Supreme Court’s Double Standard on Race

It ended affirmative action but allowed racial profiling for immigration enforcement

In June, President Donald Trump announced that US Immigration and Customs Enforcement (ICE) would be carrying out what he called “the single largest mass deportation program in history.” A senior White House adviser previously said that they even set a quota: “minimum 3,000 arrests for ICE every day.” 

In pursuit of that goal, ICE employed a controversial tactic called “roving patrols,” operations where agents patrol areas without fixed checkpoints, stopping people based on observation alone. Across the Los Angeles area, masked ICE agents were bursting out of undercover vehicles at sites with Hispanic day laborers, demanding papers and detaining people who were in the country illegally — as well as US citizens and people legally residing in the US. A group of five people who were stopped or arrested during these raids joined with local and state organizations to file the class action lawsuit Noem v. Vasquez-Perdomo, leading to a temporary halt to the practice. 

The Supreme Court’s response to that suit could signal a shift in the way the Constitution is interpreted, a change that may affect US citizens as much as it does undocumented immigrants. The Court’s unsigned September 8 order seemingly upends the precedent of not relying on racial profiling and places race squarely in the realm of what agents may consider, based on the “totality of the particular circumstances.” In the city of Los Angeles, where almost half the population identifies as Hispanic, the effects will be considerable, and as ICE operations move to other major US cities, the impact will spread across the country.

Noem v. Vasquez-Perdomo hinges on whether ICE’s tactics violate the Fourth Amendment, which prohibits unreasonable searches and seizures and protects citizens and noncitizens alike. In order to stop and question someone, officers must at least have a reasonable suspicion that the person is involved in criminal activity. Reasonable suspicion is based on a set of facts, not a hunch or some other set of factors. The standard for arrest is even higher –– probable cause that a crime has been or is being committed. ICE faced a clear challenge in Noem v. Vasquez-Perdomo: courts have held that, under the Fourth Amendment, race alone does not establish reasonable suspicion.

This was clearly established in a 1975 Supreme Court ruling that dealt with a roving patrol near the Mexican border. In United States v. Brignoni-Ponce, the Court ruled that because of the Fourth Amendment, immigration officers could not stop and question people about immigration status “when the only ground for suspicion is that the occupants appear to be of Mexican ancestry.” Rather, officers must be “aware of specific articulable facts” that are cause for suspicion. Even now, ICE must meet this standard — and be able to justify searches with specific and observable facts — or else its tactics are illegal. 

That’s why the plaintiffs in Noem v. Vasquez-Perdomo set out to prove that ICE was relying on race, targeting people of Hispanic descent. For its defense, the government needed to show that ICE was not relying on race but on some other factor or factors. 

To do this, the government named four factors ICE agents consider when making these stops: (1) apparent race or ethnicity, (2) limited English proficiency or Spanish-speaking, (3) place, and (4) kind of work. The government argued that it was not relying solely on race and that these four factors together amount to reasonable suspicion. 

The plaintiffs argued that the four factors are just proxies for race. The district court sided with the plaintiffs, ordering a freeze on ICE’s roving patrols. The government appealed, and the Ninth Circuit Court also sided with the plaintiffs. The government appealed again, and the case went up to the Supreme Court’s emergency docket — a process that allows the Court to issue quick rulings on urgent matters without full briefing and argument.

The Supreme Court’s decision and the dissent

The Supreme Court issued a 6–3 decision in favor of the government. This decision, which was unsigned and without explanation, overturned the limitations the lower courts had set on ICE. Justice Brett Kavanaugh wrote a concurring opinion in support of the decision, and Justice Sonia Sotomayor wrote a dissent that was joined by the other two liberal justices. 

Kavanaugh said that the Court was merely allowing “common sense” and lawful tactics. He stressed that the Court was not permitting racial profiling. "To be clear, apparent ethnicity alone cannot furnish reasonable suspicion.” However, this came with a caveat: apparent ethnicity "can be a 'relevant factor' when considered along with other salient factors." 

In her dissent, Sotomayor wrote, “We should not have to live in a country where the Government can seize anyone who looks Latino, speaks Spanish, and appears to work a low wage job.” Rebutting Kavanaugh’s claim that ethnicity alone is still not cause for ICE to target someone, she wrote, “Ethnicity and language are often intertwined, so relying on only those two factors is no different than relying on ethnicity alone.” 

The Court sided with Solicitor General D. John Sauer — the government’s top Supreme Court lawyer — who said that the lower courts’ decisions put "a straitjacket on law-enforcement efforts.” The plaintiffs’ lawyers responded in a brief to the Court that the government’s argument came “very close to justifying a seizure of any Latino person in the Central District,” which they said “is anathema to the Constitution.”

Conflicting rulings

The Noem v. Vasquez-Perdomo supporting opinion and the dissent make no mention of the 14th Amendment’s Equal Protection Clause — the constitutional provision that guarantees all people “equal protection of the laws” and broadly prohibits government discrimination based on race. But Noem v. Vasquez-Perdomo has clear ties to other cases that DO consider the clause. When ending affirmative action in college admissions in Students for Fair Admissions v. Harvard, the Supreme Court said that race could not be considered in admission decisions at schools that receive federal funding because the 14th Amendment does not permit any distinctions of law based on race, color, or nationality. That was in 2023. Now, just two years later, the same Supreme Court has ruled that immigration officials can detain an individual primarily for being brown-skinned and Spanish-speaking. What changed?

The apparent double standard by which race can be used in law enforcement but not in admission decisions came as a shock to California Attorney General Rob Bonta. He told Politico, “How they prevent the use of race to tackle discrimination, but allow the use of race to potentially discriminate is troubling and it is disturbing.”

Stanford law professor Jennifer M. Chacón also pointed out the inconsistency, writing, “The Court’s endorsement of racially discriminatory policing is very difficult to reconcile with its hard line against any reliance on race in other contexts.” 

The future of immigration enforcement

Following the decision, ICE resumed its patrols. In Los Angeles, ICE has been given license to keep “detaining people without evidence or due process simply because of the color of their skin, the language they speak, or the work they do,” according to Mark Rosenbaum, an attorney at the nonprofit law firm Public Council. 

The American Immigration Council says, “Crucially, this order is not a final ruling, but it strongly signals the Supreme Court will not uphold strict constitutional limits on the authority of immigration agents.” We don’t yet know if or when the case will make its way back to the Supreme Court.In the meantime, the American Immigration Council predicts, “we can expect federal agents to be emboldened by this decision” as it “ramps up immigration raids in other cities like Chicago.”

Chacón laments that “at a time when federal immigration enforcement agencies are receiving a massive expansion to their budgets,” they are being empowered to employ “the most chaotic and discriminatory enforcement strategy they possess.” Because there are a number of ways to enforce immigration law through just means, such as immigration status inquiries, Chacón says, “the choice that has to be made is not between racial profiling or no immigration enforcement at all. The choice is between discriminatory forms of immigration enforcement” and “nondiscriminatory immigration enforcement.”