A woman is detained by federal agents after exiting a hearing in immigration court at the Jacob K. Javitz Federal Building on Sept. 3, 2025, in New York City. (Photo by Michael M. Santiago/Getty Images)

WASHINGTON — Supreme Court Justice Brett Kavanaugh argued in a major case earlier this month that U.S. citizens face few problems in having their immigration status verified if federal agents apprehend them.

“If the officers learn that the individual they stopped is a U.S. citizen or otherwise lawfully in the United States, they promptly let the individual go,” Kavanaugh wrote in concurrence with an opinion in a case on the emergency docket. 

In reality, the Trump administration’s aggressive drive to carry out mass deportations of people without legal status already has led to U.S. citizens being swept up in raids and detained, according to news reports from around the country as well as immigration experts. Such detainments now will increase, experts predict.

Once in detention, it can take time to verify citizenship. A passport is considered the gold standard for proof that an individual is a citizen, but fewer than half of Americans hold passports, according to the State Department’s most recent data from 2024. Even fewer are likely to carry the bulky document around.

Kavanaugh’s remarks came in a 6-3 Supreme Court decision that gave the go-ahead, for now, for Immigration and Customs Enforcement agents to use racial profiling in enforcement raids in Los Angeles, while a case on the issue proceeds through the courts. A district court’s order had barred federal immigration officers from using racial profiling to detain immigrants without legal status.

Two of the five plaintiffs at the center of the case are Latino men who repeatedly informed federal immigration officials they were U.S. citizens, but were still arrested and detained. 

All three liberal justices on the high court dissented with the ruling that authorized racial profiling. Justice Sonia Sotomayor in a scathing opinion said Kavanaugh’s reasoning “blinks reality.” 

John Sandweg, an attorney who served as the acting director at ICE during the Obama administration, said in an interview with States Newsroom that the outcome is clear.

“There’s a high likelihood, based on this opinion, that somebody who is a United States citizen could be detained for days, if not weeks, while ICE goes out and tries to confirm … that they are in fact a U.S. citizen,” said Sandweg.

“It’s not something you can figure out in the parking lot of a Home Depot,” he said, referring to locations targeted by ICE because day laborers, typically lacking legal status, wait there to find work.

Proving you are a citizen

There is no national database of U.S. citizens and no requirement to carry around a national ID, meaning it can take ICE significant time to verify citizenship status, Sandweg said.

There is an exception for naturalized citizens, something ICE officers can quickly check in a database. But more complex situations such as Americans born abroad to U.S. citizen parents, known as derivative citizenship, can be more problematic.

Obtaining a passport is an answer but it is expensive, costing up to $160 to renew or get one for the first time, and takes weeks for processing.  

Even carrying a form of identification like a driver’s license doesn’t guarantee proof of citizenship, as 19 states and the District of Columbia approve driver’s licenses regardless of citizenship status. 

It’s unclear how often ICE mistakenly arrests U.S. citizens, but the most recent data comes from a 2021 report from the Government Accountability Office, an independent federal watchdog agency. 

The report found that ICE arrested 674 “potential” U.S. citizens, detained 121 and deported 70 from fiscal year 2015 to six months into 2020 — long before the current crackdown.

ICE did not respond to States Newsroom’s requests for comment about the process for immigration officials to verify citizenship.

‘Apparent ethnicity’

The order from the high court, for now, will allow federal immigration officials to use “apparent ethnicity” as one factor in determining reasonable suspicion that a person is violating U.S. immigration law, as long as it is not the only factor. 

Before the district court issued a restraining order on the practice, immigration agents used a broad variety of factors to determine someone’s apparent ethnicity, including speaking Spanish or accented English, certain types of work like landscaping and day labor and locations such as bus stops or car washes.

The case stemmed from the administration’s mass raids this summer on Los Angeles-area Home Depot stores and other sites where day laborers gather, sparking massive protests in the city. President Donald Trump cited the protests in deploying National Guard troops and U.S. Marines to the city, over California Gov. Gavin Newsom’s objections. 

Those two plaintiffs in the case are not the only U.S. citizens swept up in ICE raids during the second Trump administration.

In Florida, police detained a 20-year-old for days following a traffic stop, even though he told officers he was a U.S. citizen and provided his Social Security card. In New Jersey, ICE detained a U.S. citizen who was a military veteran for hours before releasing him. 

And in Southern California, a 25-year-old U.S. Army veteran was detained for three days by federal immigration officials, The Atlantic reported. 

Members of Congress have also expressed concern about federal immigration officials arresting and detaining U.S. citizens, and 50 Democratic lawmakers have pressed the Department of Homeland Security internal watchdogs to investigate if the agency is violating Americans’ civil rights.

“We are increasingly concerned by reporting that U.S. citizens are being detained as a result of the Trump administration’s immigration enforcement actions,” they wrote in a letter last month to the DHS  Office for Civil Rights and Civil Liberties, the Office of Inspector General and the Office of the Immigration Detention Ombudsman.

Supreme Court ‘signaling to ICE’

The ruling, while based on immigration raids in Los Angeles, could have effects nationwide, said Sophia Genovese, a clinical teaching fellow and supervising attorney at Georgetown University’s Center for Applied Legal Studies. 

The Trump administration launched an immigration crackdown in Chicago and Boston this month, two cities with large immigrant populations. They were also the frequent target for Texas Gov. Greg Abbott to send buses of newly arrived migrants from the southern border. 

Genovese said while Kavanaugh’s concurrence is not a binding majority opinion, “it’s still signaling to ICE that they can engage in this racial profiling,” for a warrantless arrest. 

ICE agents are allowed to make warrantless arrests if an officer has probable cause or reason to believe a person is in the United States without legal authorization and can escape before a warrant is obtained.   

“The situation that we’re seeing play out in L.A. and across the country is a warrantless arrest, and the reality on the ground is they’re being quite violent and physical with people,” she said. “They’re quite literally snatching people off the street.”

Genovese, who specializes in immigration and asylum law, said that even when a U.S. citizen produces their documents, it can take weeks to be released for detention or to have a case closed in immigration court. 

“People are scared, and people have been saying they feel like they need to carry their ‘papers,’ whether that’s a passport or a green card or something else, to prove that they have a right to be here,” Genovese said. “That isn’t required under the law, but that’s nevertheless the impact it’s having on communities.”

She added that the burden to prove citizenship should be on the federal government, not the individual. 

It’s a consequence that Sotomayor warned in her dissent would fall on the Latino community, arguing that it creates a second-class citizenship status and violates the U.S. Constitution’s Fourth Amendment that bars unreasonable search and seizure.

“The Government, and now the concurrence, has all but declared that all Latinos, U. S. citizens or not, who work low wage jobs are fair game to be seized at any time, taken away from work, and held until they provide proof of their legal status to the agents’ satisfaction,” she wrote. 

Then U.S. Sen. Joseph McCarthy of Wisconsin testifying against the U.S. Army during the Army-McCarthy hearings in Washington, D.C., June 9, 1954. McCarthy stands before a map which charts Communist activity in the United States. (Photo by Getty Images)

Driven by “a lineup of disgraceful racial bigots and American fascists,” a divisive political crusade by conservatives in the United States was “like a gigantic, tumultuous hurricane” that “dominated the thoughts and actions of the American people, disrupting their emotions, distorting their judgment ….” Those are the words of Michigan Republican Charles E. Potter, a member of the House UnAmerican Activities Committee, who, in his 1965 book “Days of Shame,” repudiated the excesses of the McCarthy era.

I read Potter’s 60-year-old mea culpa in David Maraniss’s powerful personal history, “A Good American Family: The Red Scare and My Father,” (Simon & Schuster 2019), which traces the Maraniss family’s harrowing journey to Madison, Wisconsin. The anti-McCarthy Capital Times newspaper saved Maraniss’s dad, Elliott, giving him a job after he was blacklisted and then followed from town to town by federal agents investigating his political activities over “five years, five cities, four kids, eight homes, two papers that fired him, three papers that folded,” as Maraniss writes.

I binge-read the book amid a storm of news as the administration of President Donald Trump ramped up attacks on leftwing activists, Democrats, progressive nonprofits and the media, blaming them for the killing of rightwing activist Charlie Kirk, and vowing to attack what White House adviser Stephen Miller called a “vast domestic terror movement,” using the full force of the federal government to “identify, disrupt, dismantle and destroy these networks.” 

I reached out to Maraniss Thursday in Madison, where the Pulitzer Prize-winning reporter and author grew up and still spends summers. ABC had just indefinitely suspended late-night talk show host Jimmy Kimmel for criticizing the MAGA movement’s weaponization of the Kirk shooting. And Trump and his FCC chairman were threatening to yank broadcasting licenses from media outlets that criticize the president.

I wanted to ask Maraniss about the parallels he sees between the time he describes so vividly in his book and the current moment. 

“There are several obvious haunting similarities,” he told me on the phone, “the demonization of others, the calling of all opponents Marxist or communists or enemies of the state, the gross manipulation of truth, the use of fear to stifle dissent and pressure to silence the media or get the press to go along.”

“Back then,” he added, “most of the press did go along with McCarthy for a long time.”

The Capital Times stood out as an early critic of Wisconsin’s bombastic Red-hunting senator, Joseph McCarthy. Syndicated columnist Drew Pearson was another prominent anti-McCarthy voice, along with Murrey Marder of the Washington Post and Edward R. Murrow — all mentioned in Maraniss’s book. “But you could cite many more that were going along with McCarthyism.”

The main difference Maraniss sees between the McCarthy era and today is that “McCarthy was only a senator, and now we’re dealing with the president, with full control of the levers of power which McCarthy did not have, ranging from the Justice Department to the military.”

McCarthy took aim at major U.S. institutions — from government agencies to  universities to Hollywood to mainline Protestant churches — but he overstepped when began attacking the U.S. Army, infuriating then-President Dwight Eisenhower. 

Another glaring difference between then and now, Maraniss added, “is that McCarthy did not have the full support of his own party, the Republican Party.” Today, “almost any Republican who opposed Trump is now no longer in office or in the party.”

It took a long time, however, for mainstream media and mainstream Republicans to turn against McCarthyism and for the public to swing from the distorted thinking former HUAC member Potter finally repudiated to the consensus that leftwing political ideology did not, in fact, pose an existential threat to U.S. national security.

Among the many echoes of Red Scare fever resonating through national politics today is the central issue of race. One of the most gripping scenes in Maraniss’s book is future Detroit Mayor Coleman Young’s testimony before the House UnAmerican Activities Committee in the Federal Building in Detroit. Young, a World War II veteran, confronts the southern racists on the committee as they question his loyalty, repeatedly correcting their slurring pronunciation of the world “Negro.” Despite the committee’s high-handedness and multiple attempts to silence him, Young has the last word. 

“I fought in the last war and I would unhesitatingly take up arms against anybody that attacks this country,” he says. “In the same manner, I am now in the process of fighting against what I consider to be attacks and discrimination against my people. I am fighting against un-American activities such as lynchings and denial of the vote. I am dedicated to that fight and I don’t think I must apologize or explain it to anybody, my position on that.”

Reading about Young and the other brave souls who stood up to McCarthyism, including the elder Maraniss’s lawyer, George Crockett, who was jailed for contempt and returned to continue fighting, is inspiring and thrilling. 

In contrast, Maraniss traces the sordid history of U.S. Rep. John Stephens Wood, a Democrat from Georgia and chairman of the House UnAmerican Activities Committee, a former member of the Ku Klux Klan (though he claimed he only went to one meeting). He lays out the evidence that Wood attended the lynching of Leo Frank, a Jewish industrialist who was accused of killing of a young, female factory worker in Georgia. Wood was the “wheelman” for Judge Newt Morris, his mentor, helping to collect the body from the lynchers and drive it to the morgue. 

White racists, as Potter later acknowledged, played a prominent role in the McCarthy era purges of “un-American” activists. These were the people who sat in judgment of civil rights leaders, Black unionists and activists for racial equality. Maraniss’s father, an antifascist who joined the Communist Party when he was in college at the University of Michigan, led an all-Black battalion in World War II, and dedicated his life to his idealistic view of America, was the target of people who had little respect for equal rights or the Constitution.

Who are the real patriots, Maraniss asks — a question that resonates today.

“Race is at the center of American life, then and now,” Maraniss said on the phone. “And what we’re facing this time is really an attempt to erase the civil rights movement.”

“The chairman of the House un American Activities Committee that went after my father was a Georgia racist who was elected in white-only primaries and opposed every civil rights measure, and he was the one defining what’s an American,” he said. “And you have a similar thing going on now where Charlie Kirk is celebrated on NFL stadium screens and people are being fired left and right, for criticizing someone who disparaged Martin Luther King.”

It’s important not to be cowed by the deliberate use of language as a weapon to promote misunderstanding, he said, “as they have with DEI. I mean, what is on its face wrong with diversity, equity and inclusion, you know? Think about it. I mean, the same thing with being antifascist. I mean, people should embrace those ideas and not run away from them.”

Of his parents, Maraniss writes: “They never betrayed America and loved it no less than the officials who rendered judgment on them in Room 740 of the Federal Building in Detroit. They were dissenters who believed the nation had not lived up to its founding ideals in terms of race and equality, largely because of the reactionary attitudes of self-righteous attackers on the American right.”

The book ends happily. The Maraniss family arrived in Wisconsin in time to watch the Milwaukee Braves play their way to a pennant and eventually beat the Yankees in the World Series. “McCarthy was dead. The Supreme Court had essentially overturned the Smith Act, ruling it was unconstitutional to bring charges against American citizens solely because of their political advocacy. … The world was opening anew.”

But there is, of course, no real end to the struggle. In an epilogue, Maraniss writes about Cap Times reporter John Patrick Hunter, who, long after the Red Scare was safely over,  typed up sections of the preamble to the Declaration of Independence, combined it with a petition listing six of the 10 amendments to the Bill of Rights, along with the Fifteenth Amendment granting Black men the right to vote, then roamed a local park in Madison trying to collect signatures. “He gave the people the nation’s foundational truth and it did not go well,” Maraniss writes. “Of the 112 people he asked to sign the petition. Only one did. Twenty accused him of being a communist.”

“It is an endless struggle,” Maraniss said on the phone. “That’s what life is. And you know, it tends to go in cycles of reaction and counter reaction. This is a very, very difficult one of those cycles. But I’ve been an optimist my whole life. It’s being challenged like never before in my life. My father endured it and came out an optimist anyway, somehow. So to honor my father, I maintain my optimism.”